                                                                           FILED
                                                                      Jul 06 2018, 8:52 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Kyle K. Dugger                                              Curtis T. Hill, Jr.
Monroe County Public                                        Attorney General of Indiana
Defender’s Office                                           Katherine A. Cornelius
Bloomington, Indiana                                        Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of:                                           July 6, 2018
Eq.W., M.W., A.W., S.W., &                                  Court of Appeals Case No.
Ez.W.,                                                      18A-JC-555
V.B. (Mother),                                              Appeal from the Monroe Circuit
                                                            Court
Appellant-Respondent,
                                                            The Honorable Frances G. Hill,
         v.                                                 Judge
                                                            Trial Court Cause Nos.
Indiana Department of                                       53C06-1711-JC-851
                                                            53C06-1711-JC-852
Child Services,
                                                            53C06-1711-JC-853
Appellee-Petitioner                                         53C06-1711-JC-854
                                                            53C06-1711-JC-855



Baker, Judge.




Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018                                Page 1 of 14
[1]   V.B. (Mother) appeals the trial court’s order finding her five minor children to

      be children in need of services (CHINS). She argues that she was denied

      procedural due process and that the evidence is insufficient to support the

      CHINS adjudication. Although we have significant concerns about the way in

      which the Department of Child Services (DCS) litigated this case, we find that

      Mother has waived some of her arguments and that the others do not amount

      to due process violations. We also find the evidence sufficient. Therefore, we

      affirm.


                                                       Facts
[2]   In June 2017, the children were removed from Mother’s care and custody and

      DCS filed a petition alleging that the children were CHINS. DCS alleged that

      Mother was under the influence of drugs while parenting the children. A

      factfinding hearing began on September 12, 2017, at which time DCS was

      unable to provide testimony regarding Mother’s drug screens because of an

      improper request for telephonic testimony. DCS requested a continuance,

      which was granted. The factfinding hearing continued on October 25, 2017.

      DCS presented no new evidence. The trial court denied and dismissed the

      CHINS petition for lack of sufficient evidence on November 7, 2017.




      Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018          Page 2 of 14
[3]   On November 8, 2017, DCS filed a new petition alleging that the children are

      CHINS.1 The new petition was based on positive drug screens, the erratic

      behavior of the children’s father at a child and family team meeting, and the

      parents’ struggle to pay their utility bills. The factfinding hearing took place on

      December 19, 2017. At this hearing, DCS presented the following evidence

      supporting its petition:


          • Two of the children testified about sometimes being hungry, suspecting
            that their parents were using drugs, having a dirty and cluttered home,
            and their parents’ lacking attempts to homeschool them.
          • The children’s paternal grandmother (and relative placement) testified
            about general concerns regarding the children’s lack of consistent and
            structured education, the uncleanliness of the parents’ home, the parents’
            financial struggles, and the parents’ past struggles with drug use.
          • With respect to the children’s education, the parents do not trust public
            schools and have ostensibly been homeschooling the children. But the
            homeschooling was inconsistent and ineffective. For example, when
            paternal grandmother enrolled the children in public school, the nine-
            year-old did not know the alphabet and was unable to write his name.
          • The children’s maternal grandmother testified about general concerns
            regarding the uncleanliness of the parents’ home and the parents’
            financial struggles.
          • The Family Case Manager (FCM) testified regarding concerns about the
            cleanliness of the home, the parents’ financial struggles, and the lack of a
            consistent and structured education for the children.




      1
       Although the trial court dismissed the initial CHINS petition, the children were not released back to
      Mother’s care and custody. Instead, they remained in relative care leading up to the filing of the second
      CHINS petition, when their placement in relative care was continued by the trial court.

      Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018                                   Page 3 of 14
      DCS offered no evidence that parents had provided any positive drug screens.

      Following the presentation of the evidence, counsel for Mother raised the

      following argument:


               These kids have been detained since, um, I think the end of June.
               The end of June the children were removed and the parents
               requested a contested fact-finding hearing. They didn’t get it
               until September, um, where DCS put on evidence and then was
               allowed to continue it for another month until the end of October
               and they said that they were gonna bring more evidence because
               they hadn’t put on enough. Um, they came back and didn’t put
               on any new evidence and the Court dismissed the CHINS
               petition and DCS immediately refiled and said there was gonna
               be new evidence that would be presented that had come to light,
               um, in the time since they have [sic] lost their initial petition.
               And so parents requested another contested fact-finding and we
               came here today and are supposed to be hearing that new
               evidence of, um, what circumstances have changed since we
               were here in September and DCS failed to prove their case the
               first time. Um, I [don’t] think we’ve heard any new
               information. . . .


      Tr. Vol. II p. 71-72.


[4]   On January 3, 2018, the trial court issued an order finding the children to be

      CHINS. The CHINS finding is primarily based on the cluttered and unclean

      state of the home and the condition of the home environment in general; the

      lack of a consistent and structured educational program for the children; and

      the erratic behavior of the parents as observed by the children. Mother now

      appeals.



      Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018           Page 4 of 14
                                     Discussion and Decision
                                              I. Due Process
[5]   Mother argues that her due process rights were violated because DCS was

      allowed to file a second CHINS petition based on substantially similar

      allegations that were found insufficient the first time.


[6]   Parents are, indeed, afforded procedural due process protections in CHINS

      proceedings. E.g., In re K.D., 962 N.E.2d 1249, 1257 (Ind. 2012). When

      reviewing a procedural constitutional challenge, we must determine whether

      the process employed was fair. Ind. High Sch. Athletic Ass’n, Inc. v. Carberg, 694

      N.E.2d 222, 241 (Ind. 1997). Constitutional claims are waived when raised for

      the first time on appeal. E.g., McBride v. Monroe Cty. Office of Family and Children,

      798 N.E.2d 185, 194 (Ind. Ct. App. 2003).


                                             A. Res Judicata
[7]   Mother first argues that principles of res judicata should have barred the trial

      court from granting DCS’s second CHINS petition. It is unclear whether

      Mother contends that the subsequent petition is barred by claim preclusion or

      issue preclusion. Claim preclusion applies where a final judgment acts as a

      complete bar to all subsequent action on the same issue or claim between the

      parties. M.G. v. V.P., 74 N.E.3d 259, 264 (Ind. Ct. App. 2017). For claim

      preclusion to apply, four elements must be established: (1) the former judgment

      was rendered by a court of competent jurisdiction; (2) the former judgment was

      rendered on the merits; (3) the same issue was, or could have been, determined

      Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018            Page 5 of 14
       in the prior action; and (4) the first action was between the same parties. Id.

       Issue preclusion, on the other hand, bars litigation of the same facts or issues

       that were adjudicated in a former lawsuit, but applies only to the matters

       actually litigated and decided rather than to all matters that might have been

       decided. Freels v. Koches, 94 N.E.3d 339, 342 (Ind. Ct. App. 2018).


[8]    In June 2017, DCS filed its first CHINS petition, which was based primarily on

       the parents’ alleged drug use. At the September-October 2017 factfinding

       hearing, DCS failed to prove its case, so the trial court denied and dismissed its

       petition. The next day, DCS filed another CHINS petition. This petition

       offered different reasons for the CHINS status, and the second time, the trial

       court found that DCS had met its burden. But no evidence was offered in the

       second CHINS factfinding hearing that was not equally available in the first. In

       June through October 2017, the home was cluttered and unclean, the children’s

       education was inconsistent and unstructured, and the parents’ behavior was, at

       times, erratic. All of this evidence could have been presented at the first

       factfinding hearing, but for unknown reasons, it was not.


[9]    Counsel for Mother, however, voiced these concerns only as an evidentiary

       argument at the close of the factfinding hearing. At no point did counsel move

       to dismiss the CHINS petition based on issues of res judicata. As such, we are

       compelled to find that this issue has been waived.


[10]   While we are unable to grant relief to Mother on this argument, in no way do

       we intend to condone the way in which DCS litigated this case. If DCS had


       Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018           Page 6 of 14
       sufficient concern about these children to file the first CHINS petition, it should

       have gathered enough evidence to prove its case—the first time.2 Why it was

       able to gather this evidence the second time but not the first is not wholly clear,

       but we explicitly discourage DCS from adopting this process on a regular basis.

       We share Mother’s concern that this process allows DCS “to take multiple bites

       at the apple by litigating piecemeal until a court of competent jurisdiction

       finally determine[s] that the facts presented [are] sufficient to carry [DCS’s]

       burden.” Reply Br. p. 8. That would, indeed, implicate very serious due

       process concerns.3 In this case, however, as Mother did not move to dismiss the

       petition based on res judicata, the issue is waived for appellate purposes.4


                                  B. New Filing and Removal
[11]   Mother also argues that an improper process was employed with respect to the

       children’s detention in relative care. Specifically, she contends that the children




       2
         We also question why, when DCS and the people involved with this family have explicit and consistent
       concerns about the parents’ drug use, DCS failed to offer any actual evidence of substance abuse at either
       factfinding hearing.
       3
        Indiana Code section 31-34-12-5 allows evidence of prior acts or omissions in CHINS proceedings.
       Therefore, it is undeniable that the evidence offered at the second CHINS proceeding was properly admitted.
       But we strongly question whether there should have been additional, new evidence supporting the new
       CHINS petition—evidence that was not available during the first CHINS proceeding—to avoid res judicata
       problems.
       4
         In addition to our concerns about the way in which the CHINS process was litigated, we are troubled by
       portions of DCS’s appellate brief. Mother moved to strike multiple assertions made by DCS in its brief,
       including several statements of “fact” regarding parents’ drug screens. As noted above, DCS did not even
       attempt to prove parents’ substance abuse at the factfinding hearing. Moreover, the trial court actually
       excluded some of the evidence supporting these assertions from the first CHINS proceeding. It is at best,
       careless, and at worst, dishonest, for DCS to include these “facts” in its brief with no evidentiary support.
       We grant Mother’s motion to strike by separate order and strongly suggest that DCS be more careful in future
       appellate endeavors.

       Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018                                   Page 7 of 14
       should have been returned to her care and custody when the first CHINS

       petition was denied and dismissed on November 7, 2017. Instead, the trial

       court continued their detention until the next day, when DCS filed a new

       CHINS petition and sought a new detention hearing.


[12]   This situation is an example of why we are so very concerned about the process

       employed by DCS in this case. Having failed to prove the first CHINS petition,

       DCS filed a second CHINS petition the next day and left the children in relative

       care, arguing that it would have traumatized the children to return them home

       for one day. We do not disagree regarding the trauma to the children, but

       observe that if DCS had simply put in a better effort during the first CHINS

       case, this problem would not have arisen at all. That said, we do not find that

       this procedural irregularity, or the delay of one day, amounts to a sufficient

       reason to reverse the trial court’s order in this case.


                                       C. Educational Neglect
[13]   Finally, Mother argues that she was denied due process because, although the

       second CHINS petition did not include specific facts alleging educational

       neglect, the children’s education ended up being a primary point litigated

       during the factfinding hearing and then relied upon by the trial court in its final

       order. But Mother did not object to any of the evidence admitted at the hearing

       regarding educational neglect; she also cross-examined DCS’s witnesses on the

       issue. Tr. Vol. II p. 21, 37-39. As such, she impliedly consented to the issue

       being incorporated into the CHINS proceeding. See In re V.C., 867 N.E.2d 167,


       Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018           Page 8 of 14
       168 (Ind. Ct. App. 2007) (holding that issues not set out in the pleadings may be

       tried by the express or implied consent of the parties, including situations in

       which the evidence at trial is such that a reasonably competent attorney would

       have recognized that the un-pleaded issue was being litigated). Under these

       circumstances, we decline to find a due process violation.


                                                II. Sufficiency
[14]   Mother also argues that the evidence is insufficient to support the trial court’s

       order finding the children to be CHINS. Our Supreme Court has explained the

       nature of a CHINS proceeding and appellate review of a CHINS finding as

       follows:


                A CHINS proceeding is a civil action; thus, “the State must
                prove by a preponderance of the evidence that a child is a
                CHINS as defined by the juvenile code.” In re N.E., 919 N.E.2d
                102, 105 (Ind. 2010). We neither reweigh the evidence nor judge
                the credibility of the witnesses. Egly v. Blackford County Dep’t of
                Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider
                only the evidence that supports the trial court’s decision and
                reasonable inferences drawn therefrom. Id. We reverse only
                upon a showing that the decision of the trial court was clearly
                erroneous. Id.


                There are three elements DCS must prove for a juvenile court to
                adjudicate a child a CHINS. DCS must first prove the child is
                under the age of eighteen; DCS must prove one of eleven
                different statutory circumstances exist that would make the child
                a CHINS; and finally, in all cases, DCS must prove the child
                needs care, treatment, or rehabilitation that he or she is not
                receiving and that he or she is unlikely to be provided or accepted


       Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018            Page 9 of 14
                without the coercive intervention of the court. In re N.E., 919
                N.E.2d at 105.


       K.D., 962 N.E.2d at 1253-54 (footnote omitted).


[15]   Here, DCS alleged that the children were CHINS pursuant to Indiana Code

       section 31-34-1-1, which provides as follows:


                A child is a child in need of services if before the child becomes
                eighteen (18) 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.


       Our Supreme Court has interpreted this provision to require “three basic

       elements: that the parent’s actions or inactions have seriously endangered the

       child, that the child’s needs are unmet, and (perhaps most critically) that those

       needs are unlikely to be met without State coercion.” In re S.D., 2 N.E.3d 1283,

       1287 (Ind. 2014).




       Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018                 Page 10 of 14
[16]   The primary reasons that the trial court found the children to be CHINS were

       their insufficient education and the condition of the home and home

       environment. Its findings on these issues are as follows:


                22. The evidence shows that [E] and [M] have not attended
                any school for the past 5 years. [S] is 9 and has never attended
                school. The testimony of Paternal Grandmother is credible that
                she began to provide some education for the children when she
                noticed their deficits, including inability to read. The testimony
                of [M] and [E] is credible that the parents gave them “random
                stuff,” but they didn’t really have education in the home and [E]
                wanted to go to school but was not able to. Although some of
                these children are doing better than others academically, they all
                suffer from educational delays and need to catch up if possible.
                There is no evidence that either parent provided a program of
                instruction to any of the children that was comparable to the
                public school system or any evidence of any regular and
                consistent course of study needed for health and normal
                education. Deprivation of education for up to five years for some
                children constitutes negligence that seriously endangers their
                mental condition.


                23. The condition of the housing and home environment also
                constitutes neglect and a serious endangerment to the children.
                The testimony of Maternal Grandmother, Paternal Grandmother
                and the oldest children is credible that the parent’s home is
                packed with boxes, clothes, books, furniture, and stuff that some
                of the bedrooms cannot be entered and the children don’t have
                access to their beds. Paternal Grandmother unearthed rat feces
                when she cleaned one of the rooms. Grandparents acknowledge
                the danger to the children from this housing with particular
                concern for the baby. Additionally, the environment of the home
                contributes to this finding of neglect. Allowing strangers to
                wander through the home at the expense of the privacy of the
                children prioritizing the needs of strangers over the children

       Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018          Page 11 of 14
                endangers the well-being of the children. Parent behaviors that
                their teenage children describe as “weird,” “crazy,” and
                “frightening” and that the children believe may be the result of
                the parents’ drug use, including grunting, flipping tables, yelling,
                throwing things, and “destroying” the home, is seriously
                endangering to the mental condition of the children. Although
                the evidence did not show undernourishment, the “hunger”
                expressed by at least one of the children is a significant concern.
                The testimony of the older children of occasional hunger and
                their stated desire for 3 meals a day, might not support a finding
                of CHINS standing alone, but it is a factor of negligence when
                combined with the other evidence.


       Appellant’s App. Vol. II p. 60-63. These factual findings all find support in the

       evidence presented at the factfinding hearing. Mother points out that paternal

       grandmother is not an education expert and asks us to discount her testimony

       as a result, but this amounts to a request that we reweigh evidence and re-assess

       witness credibility, which we may not do.


[17]   With respect to educational neglect, the record reveals that the parents do not

       trust the public school system. They have occasionally enrolled some of the

       children in school, but when the school recommended that the children receive

       various types of special assistance, the parents removed the children from

       school. The parents claimed to be homeschooling the children, but the record

       reveals that they did not do so in any consistent or structured manner. The

       nine-year-old did not know the alphabet or how to write his name. The two

       children who testified at the factfinding hearing had not been to school for five

       years and were far behind their grade level. Part of the reason Eq.W. did not

       want to return to his parents’ home is because he was worried they would

       Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018             Page 12 of 14
       remove him from school again. We find that this evidence supports the trial

       court’s conclusion that the parents failed to provide their children with a

       suitable education, endangering the children’s mental condition as a result.


[18]   Mother also argues that evidence related to the home and home environment

       all related to conditions in the past. Initially, we note that the home based case

       manager reported that in late September or October 2017—in the months

       leading up to the factfinding hearing—the home was unclean, with clothing

       filling the rooms such that people could not walk on the floor. Additionally,

       maternal grandmother testified that as of October, when conditions had

       improved slightly, the home was still so cluttered that multiple rooms, including

       two bedrooms and one bathroom, were unusable. Tr. Vol. II p. 51-52. Paternal

       grandmother and the children who testified also expressed concerns about the

       dirty state of the home. After October, the parents refused to allow anyone into

       their home. We find that this evidence supports (1) a conclusion that the

       parents’ home is habitually so unclean and cluttered that it seriously

       endangered the children; and (2) a reasonable inference that the home was still

       in such a state at the time of the factfinding hearing.


[19]   Mother correctly argues that financial insecurity cannot be the sole factor

       supporting a CHINS adjudication. But the trial court’s findings regarding

       educational neglect and the condition of the home support the CHINS

       adjudication, even apart from any concerns about the family’s financial

       situation.



       Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018          Page 13 of 14
[20]   Finally, Mother contends that the evidence does not support a conclusion that

       the coercive intervention of the court is necessary to ensure the children are

       provided the care that they need. We disagree. While the parents voluntarily

       attended substance abuse treatment, they only allowed the home based case

       manager into their home once and stopped meeting with her once their utilities

       were turned back on. They refused to allow the FCM into their home. They

       attended one Child and Family Team Meeting, at which time the father became

       verbally aggressive, and then failed to attend the next one. Mother became

       angry when the two grandmothers tried to discuss their concerns about the

       children. Maternal grandmother found it to be a struggle to get Mother to

       create and follow a daily schedule to ameliorate some of the underlying issues;

       Mother would comply for a couple of days and then stop. Under these

       circumstances, we find that the evidence supports the trial court’s conclusion

       that the coercive intervention of the court was necessary.


[21]   In sum, while we disapprove of the way in which DCS litigated this case, we

       find that the evidence supports the trial court’s conclusion that the children are

       CHINS.


[22]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JC-555 | July 6, 2018          Page 14 of 14
