MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         FILED
regarded as precedent or cited before any                                Oct 03 2019, 8:46 am
court except for the purpose of establishing                                  CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Suzy St. John                                             Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General
Indianapolis, Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of T.C. (Minor                              October 3, 2019
Child), Child in Need of                                  Court of Appeals Case No.
Services, and                                             19A-JC-432
                                                          Appeal from the Marion Superior
                                                          Court
M.C. (Mother),
                                                          The Honorable Marilyn A.
Appellant-Respondent,                                     Moores, Judge

        v.                                                The Honorable Danielle Gaughan,
                                                          Magistrate

Indiana Department of Child                               Trial Court Cause No.
                                                          49D09-1812-JC-2976
Services,
Appellee-Petitioner



Crone, Judge.


Court of Appeals of Indiana | Memorandum Decision 19A-JC-432 | October 3, 2019                    Page 1 of 8
                                              Case Summary
[1]   The Marion County Department of Child Services (“DCS”) filed a petition

      alleging that nine-year-old T.C. was a child in need of services (“CHINS”).

      During a factfinding hearing attended by T.C.’s mother, M.C. (“Mother”), and

      after the presentation of five witnesses, DCS moved to dismiss the CHINS

      petition without prejudice, stating that it planned to refile a new petition to

      include additional allegations. The trial court granted the motion to dismiss

      without prejudice over Mother’s objection. Mother now appeals that decision.

      We affirm.


                                  Facts and Procedural History
[2]   T.C. was born to Mother on October 14, 2009. She was placed in the care of

      her godmother at that time because Mother was incarcerated. Mother was

      released from incarceration when T.C. was one year old. However, T.C. stayed

      in her godmother’s care because Mother went on work release, and then on

      home detention. T.C. finally began living with Mother in October 2018.


[3]   On December 4, 2018, DCS received a report from T.C.’s school that T.C. had

      reported being sexually abused by Mother’s boyfriend. DCS scheduled a

      forensic interview for that same day. T.C. informed the forensic interviewer

      that Mother’s boyfriend had sexually abused her. Mother stated that she did

      not believe T.C. Following the interview, T.C. was taken to the hospital for a

      sexual abuse evaluation. The results were inconclusive. While at the hospital,

      T.C. recanted her story. DCS staff believed that Mother must have said


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-432 | October 3, 2019   Page 2 of 8
      something to T.C. to cause her to change her story. Mother tried to remove

      T.C. from the hospital before permitted to do so, and then became combative,

      causing security to be called. Due to Mother’s behavior, DCS removed T.C.

      from Mother’s care.


[4]   DCS filed a CHINS petition on December 6, 2018, and an amended petition on

      January 10, 2019.1 The petition alleged that T.C. had been sexually abused by

      Mother’s boyfriend, that Mother did not believe T.C., and that as a result,

      Mother had failed to provide T.C. with a safe, stable, and appropriate living

      environment free from sexual abuse.


[5]   The trial court held a factfinding hearing as to Mother on January 28, 2019.2

      After presenting the testimony of five witnesses, and receiving numerous

      adverse evidentiary rulings, DCS moved to dismiss the CHINS petition without

      prejudice. Mother objected and requested a dismissal with prejudice since an

      evidentiary hearing had already been commenced and witnesses were

      examined. DCS informed the trial court that it planned to “refile within the

      next twenty-four hours.” Tr. Vol. 2 at 53. The trial court granted DCS’s

      motion for dismissal without prejudice and ordered T.C. returned to Mother

      but warned Mother that “it sounds like DCS is [re]filing.” Id. The court then

      stated that the case was closed at least for the “moment.” Id. Mother now

      appeals the without-prejudice dismissal of the CHINS petition. Both parties



      1
          The amended petition corrected the name of T.C.’s father.
      2
          As of the time of the hearing, DCS was unable to locate T.C.’s father.

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-432 | October 3, 2019   Page 3 of 8
      acknowledge that, at this juncture, it does not appear that DCS ever refiled a

      CHINS petition.


                                     Discussion and Decision
[6]   Before turning to the merits, we first address DCS’s assertion that Mother’s

      appeal should be dismissed because the trial court’s without-prejudice dismissal

      of the CHINS petition was not a final appealable order. Our supreme court has

      held otherwise, with members of the court very recently reiterating that a

      without-prejudice dismissal is in fact a final appealable judgment. Matter of

      Eq.W., 124 N.E.3d 1201, 1216 (Ind. 2019) (Slaughter, J. concurring in part and

      in the judgment with separate opinion in which Massa, J., joined) (citing Wall v.

      Hutton, 92 Ind. App. 705, 706, 173 N.E.600, 601 (1930)). Accordingly, we

      decline DCS’s request to dismiss Mother’s appeal.


[7]   Mother contends that the trial court abused its discretion in granting DCS’s

      motion to dismiss the CHINS petition without prejudice. Specifically, Mother

      contends that she was unduly prejudiced by the trial court’s decision to allow

      this type of voluntary dismissal after a factfinding hearing had already been

      commenced. We disagree.


[8]   We review a trial court’s decision to grant a motion for voluntary dismissal

      without prejudice for an abuse of discretion. Principal Life Ins. Co. v. Needler, 816

      N.E.2d 499, 502 (Ind. Ct. App. 2004). An abuse of discretion occurs when the

      dismissal is not “in accordance with what is fair and equitable within the



      Court of Appeals of Indiana | Memorandum Decision 19A-JC-432 | October 3, 2019   Page 4 of 8
      confines of justice, in light of and confined to the facts and circumstances of a

      particular case.” Id.


[9]   In a CHINS proceeding, “the State must prove by a preponderance of the

      evidence that a child is a CHINS as defined by the juvenile code.” In re K.D.,

      962 N.E.2d 1249, 1253 (Ind. 2012) (citation omitted). It should be emphasized

      that the purpose of a CHINS adjudication is to protect children, not to punish

      parents. Id. at 1255. Indeed, the process of the CHINS proceeding focuses on

      the best interests of the child, rather than guilt or innocence as in a criminal

      proceeding. Id. Indiana Code Section 31-34-9-8(a) provides that a person

      representing the interests of the State, i.e., DCS, “may file a motion to dismiss

      any petition that the person has filed under this chapter.” Not later than ten

      days after such motion to dismiss is filed, the trial court shall either summarily

      grant the motion to dismiss or set a date for a hearing on the motion. See Ind.

      Code § 31-34-9-8(c).3 Here, the trial court summarily granted DCS’s motion to

      dismiss the CHINS petition during the factfinding hearing immediately after

      such motion was made by DCS.




      3
        Mother argues that the legislature’s provision that DCS “may file a motion to dismiss” contemplates “a
      written motion to dismiss being filed” and therefore DCS’s oral motion to dismiss the CHINS petition was
      insufficient. Reply Br. at 8. She is mistaken. We have observed that a motion may be either written or oral
      and that oral motions may be “filed.” Matter of Adoption of J.R.O., 87 N.E.3d 37, 42 (Ind. Ct. App. 2017),
      trans. denied (2018). Indeed, we have further observed that the legislature knows how to specifically require
      the filing of a written motion when it wants to. See id. (citing Ind. Code §§ 4-21.5-3-24(b), 31-37-22-11(b), and
      35-41-3-11(c), and noting that each statute refers to the filing of a “written motion” as opposed just a
      “motion.”). The legislature has imposed no such requirement here.

      Court of Appeals of Indiana | Memorandum Decision 19A-JC-432 | October 3, 2019                        Page 5 of 8
[10]   Mother does not argue that dismissal of the CHINS petition was unwarranted,

       she simply asserts that the dismissal should have been with prejudice to prevent

       DCS from refiling a CHINS petition based upon the same allegations presented

       in the first petition. Essentially, Mother seeks a merits ruling so that she will be

       in the position to invoke the doctrine of res judicata against DCS in the event of

       a subsequent CHINS filing.4 However, we conclude under the circumstances

       presented that Mother was not entitled to a ruling on the merits.


[11]   Although factfinding had commenced and DCS presented some evidence in

       support of its claim that T.C. needed services, the trial court made no merits

       determination as to whether DCS sustained its burden of proof. Instead, after

       receiving numerous adverse evidentiary rulings during the hearing, DCS halted

       its presentation and moved for voluntary dismissal without prejudice. In

       addition to DCS’s statutory right to seek dismissal discussed above, Indiana

       Trial Rule 41(A)(2) permits a plaintiff to voluntarily dismiss an action without

       prejudice upon approval of the trial court. Mother concedes that it is generally

       recognized that voluntary dismissal without prejudice should be allowed unless



       4
         In Eq.W., a case procedurally distinguishable from the case at bar, our supreme court held as a general
       matter that the claim preclusion branch of res judicata applies to CHINS proceedings. 124 N.E.3d at 1211.
       Mother recognizes that a dismissal without prejudice is not a ruling on the merits, and therefore res judicata
       would be inapplicable to a subsequent CHINS filing here. Reply Br. at 5; see Zaremba v. Nevarez, 898 N.E.2d
       459, 463 (Ind. Ct. App. 2008) (dismissal without prejudice is not determination of merits of complaint and
       does not bar later trial of issues). Although the issue is not squarely before us, to the extent that certain
       statements in Eq.W. imply that the doctrine of res judicata could be invoked in a subsequent proceeding
       following a without-prejudice dismissal of a CHINS petition, we disagree with any such implication. See
       Eq.W., 124 N.E.3d at 1216 (Slaughter, J. concurring in part and in the judgment with separate opinion in
       which Massa, J., joined) (agreeing with majority’s determination that mother failed to preserve res judicata
       objection on appeal, but disagreeing with majority’s implication that res judicata could have otherwise been
       invoked following the non-merits without-prejudice dismissal).

       Court of Appeals of Indiana | Memorandum Decision 19A-JC-432 | October 3, 2019                      Page 6 of 8
       a defendant will suffer legal prejudice other than the mere prospect of another

       lawsuit. Rose v. Rose, 526 N.E.2d 231, 234 (Ind. Ct. App. 1998), trans. denied.

       Mother has not shown such prejudice, as the only potential legal harm she faces

       is the prospect that DCS may file a subsequent CHINS petition regarding T.C.

       based upon the same allegations. In advocating for a dismissal with prejudice

       under these circumstances, Mother is effectively requesting us to impose a

       standard akin to criminal double jeopardy in CHINS cases once any factfinding

       has begun, and we decline to do so. See Emmons v. State, 847 N.E.2d 1035,

       1037 (Ind. Ct. App. 2006) (noting in the criminal context regarding federal and

       state constitutional rights to be free from double jeopardy, “In a bench trial,

       jeopardy attaches when the court begins to hear evidence” or after “first witness

       is sworn in.”)) (citations omitted). A CHINS proceeding is a civil action, see

       K.D., 962 N.E.2d at 1253, and as the trial court here had made no rulings on

       the merits of any contested issues, voluntary dismissal of the CHINS petition

       without prejudice was appropriate. We reiterate that the purpose of CHINS

       proceedings is to protect children.


[12]   That is not to say that we condone DCS’s apparent lack of preparedness at the

       factfinding hearing, and its failure to present relevant and admissible evidence

       to support the allegations contained in the petition it chose to file. Nor do we

       mean to downplay the importance of DCS’s responsibility to “fully investigate

       and present” a “complete picture of the type of alleged conduct underpinning a

       CHINS petition” on its “first go-round.” Eq.W., 124 N.E.3d at 1210. Be that as

       it may, DCS realized its evidentiary failings and moved for voluntary dismissal


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-432 | October 3, 2019   Page 7 of 8
       well before the trial court was in the position to make a merits-based

       determination.


[13]   Under the circumstances, we conclude that the trial court did not abuse its

       discretion in granting DCS’s motion to dismiss the CHINS petition without

       prejudice. Accordingly, we affirm.


[14]   Affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-432 | October 3, 2019   Page 8 of 8
