                                                               FILED
                                                          Apr 07 2017, 7:57 am

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Thomas G. Krochta                                           Curtis T. Hill, Jr.
Evansville, Indiana                                         Attorney General of Indiana

                                                            Abigail R. Recker
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana


                                             IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of:                                           April 7, 2017

Ce.B. and Co.B. (Minor                                      Court of Appeals Case No.
                                                            82A01-1610-JC-2442
Children)
                                                            Appeal from the Vanderburgh
and                                                         Superior Court
C.K. (Custodian),                                           The Honorable Brett J. Niemeier,
Appellant-Respondent,                                       Judge
                                                            Trial Court Cause No.
        v.                                                  82D04-1607-JC-1191
                                                            82D04-1607-JC-1192
The Indiana Department of
Child Services,
Appellee-Petitioner



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017                  Page 1 of 7
                                            Case Summary
      A custodian of two siblings appeals, claiming that the juvenile court erred in

      determining that the siblings were children in need of services (CHINS) without

      first holding a factfinding hearing. We find, however, that the juvenile court

      did hold a factfinding hearing in this case. At that hearing, the custodian,

      represented by counsel, chose to stipulate that the facts contained in the CHINS

      petitions and reports of preliminary inquiry were true. The juvenile court then

      reviewed those materials and, based on the stipulated facts contained in them,

      made a legal determination that the children were CHINS. Furthermore, the

      custodian does not make any argument that his stipulation should be

      withdrawn for cause. We therefore affirm the juvenile court.



                             Facts and Procedural History
[1]   On July 5, 2016, DCS filed petitions alleging that Co.B., born October 9, 2010,

      and Ce.B., born April 17, 2015, were CHINS pursuant to Indiana Code section

      31-34-1-1. Appellant’s App. Vol. II pp. 18-19, 29-30. The petitions alleged that

      the children lived with their mother, N.B. (“Mother”), and their Mother’s

      boyfriend, C.K. (“Custodian”), and that the children’s father was in prison.1

      The petitions further alleged that Mother and Custodian engaged in domestic

      violence in front of Co.B., that Custodian was recently arrested for a domestic-




      1
       A separate order was entered regarding the children’s father. Neither Mother nor the children’s father is
      part of this appeal.

      Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017                          Page 2 of 7
      violence incident involving Mother (and had charges pending against him for

      that incident), that Custodian used cocaine and marijuana, and that Mother

      used marijuana. An initial hearing was held that same day, and Mother and

      Custodian were each appointed counsel.

[2]   Mother and Custodian appeared in court with their attorneys on July 27. The

      following colloquy occurred between the judge, Mother, Custodian, and the

      attorneys:

              [Judge]: [H]ow does your client [want to] proceed?


              [Mother’s attorney]: Your Honor, my client’s prepared to
              stipulate to the petition and affidavit.[2]


              [Custodian’s attorney]: As would my client, Your Honor.


              [Judge]: And you all understand by stipulating we’re not having
              a trial? I just refresh my memory by reading this and deciding
              the case only on this. You understand that?


              [Mother]: Yes, sir.




      2
       The probable-cause sections of the reports of preliminary inquiry contained additional facts about Mother
      and Custodian’s relationship as well as their drug use. See Appellant’s App. Vol. II pp. 20-22, 31-33. For
      example, those sections alleged that Mother was homeless but stayed with Custodian, who often beat her up
      and threw her out of his house. On one occasion, when Mother’s father came to Custodian’s house to get
      Mother and the children, Custodian ran out of the house with a sword. In addition, Co.B. told a Family
      Case Manager that Mother and Custodian smoked “white and brown blunts” around him. Id. at 21, 32.
      Contrary to Custodian’s implication in his brief, these allegations are sufficient to demonstrate that the
      children suffered harm or required services.

      Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017                        Page 3 of 7
              [Custodian]: Yes, sir.


              [Judge]: State, you also willing to do that?


              [DCS’s attorney]: Yes, Your Honor.


              [Judge]: Let me check a couple minutes here. Alright, Court will
              find, based upon the evidence before it, that the children are in
              need of services and set the matter for dispositional hearing.


      Tr. p. 5. The judge ordered Mother and Custodian not to use illegal drugs or

      alcohol and to undergo random drug screens and set a dispositional hearing for

      August 24.

[3]   Mother and Custodian appeared before a judge pro tem on August 24.

      Mother’s attorney told the judge pro tem that although Mother had stipulated

      in July, she had “reconsidered” and would now like to “withdraw her

      stipulation.” Id. at 9. Custodian’s attorney said that Custodian would also like

      to withdraw his stipulation. The judge pro tem put the matter on the judge’s

      calendar for September 7.

[4]   Mother appeared in court on September 7, but Custodian did not. The judge

      asked Mother’s attorney why Mother was seeking to withdraw her stipulation,

      and Mother’s attorney explained as follows:

              Your Honor, I think since the stipulation there have been some
              issues with regard to the services that the Department is
              requesting. The[y] don’t feel that the actions that were alleged in
              the petition would give rise to a CHINS. And then the

      Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017      Page 4 of 7
              combination with that along with the services that are being
              requested have led them to revisit the question of whether the
              stipulation would be the appropriate thing to do. I don’t believe
              that disposition has been held yet. . . .


      Id. at 14. Custodian’s attorney argued that although Custodian was not present

      in court, he “would adopt Mother’s argument.” Id. at 15. DCS’s attorney

      objected, noting that Mother and Custodian were represented by counsel when

      they entered their stipulations. The judge took the matter under advisement

      and set a review hearing for September 21.

[5]   Mother and Custodian appeared in court on September 21. The judge denied

      their requests to withdraw their stipulations and set a dispositional hearing for

      October 5.

[6]   At the dispositional hearing, Custodian declared that he “want[ed] a trial.” Id.

      at 25. The same judge pro tem from before reminded Custodian that the judge

      had already denied his request to withdraw his stipulation. Unsatisfied,

      Custodian responded, “So it’s not my right to have a trial? Is that what you’re

      saying?” The judge pro tem then clarified that Custodian “had a right to a trial

      before [he] stipulated to the facts in the petition” and advised him that he could

      appeal that order if he wanted. Id. at 27 (emphasis added).




      Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017    Page 5 of 7
[7]   Custodian now appeals.3



                                   Discussion and Decision
[8]   Custodian contends that the juvenile court erred in finding that the children

      were CHINS without first holding a factfinding hearing. See Ind. Code § 31-34-

      11-1 (“[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

      [CHINS petition] is filed . . . .”).4 However, the juvenile court did hold a

      factfinding hearing in this case on July 27. At that hearing, Custodian,

      represented by counsel, chose to stipulate that the facts contained in the CHINS

      petitions and reports of preliminary inquiry were true. See Tr. p. 5. The

      juvenile court then reviewed those materials and, based on the stipulated facts

      contained in them, made a legal determination that the children were CHINS.

      Based on this sequence of events, it appears that Custodian’s argument is

      actually that the juvenile court erred in denying his request to withdraw his

      stipulation. But as Custodian acknowledges on appeal, see Appellant’s Br. p.

      15, stipulations generally may only be withdrawn for cause:

               As a general rule, stipulations may not be withdrawn without the
               consent of both parties, or for cause. Typically, the grounds for
               setting aside a stipulation include fraud, mistake, undue



      3
       Following the dispositional hearing, the juvenile court entered a dispositional order for both Mother and
      Custodian. Appellant’s App. Vol. II pp. 45, 50.
      4
       Custodian does not argue that he admitted the allegations contained in the petitions. In fact, he asserts that
      he denied the allegations and is entitled to a factfinding hearing. Appellant’s Br. p. 14.

      Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017                            Page 6 of 7
              influence, or grounds of a similar nature. It is not a ground for
              relief that the stipulation was disadvantageous to the party
              seeking relief.


      Harlan v. Harlan, 544 N.E.2d 553, 556 (Ind. Ct. App. 1989) (citation omitted),

      reh’g denied, aff’d, 560 N.E.2d 1246 (Ind. 1990); see also 83 C.J.S. Stipulations §

      100 (2010). Custodian, however, did not set forth any grounds for cause either

      below or on appeal. We therefore affirm the juvenile court.

[9]   Affirmed.


      Bailey, J., and Robb, J., concur.




      Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017     Page 7 of 7
