                                                                      FILED
                                                               Jun 27 2019, 12:14 pm

                                                                      CLERK
                                                                  Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court



                                IN THE

        Indiana Supreme Court
                   Supreme Court Case No. 18S-JC-603

 In the Matter of Eq.W., M.W., A.W., S.W., and Ez.W.
          (Minor Children); V.B. (Mother),
                                 Appellant,

                                    –v–

           Indiana Department of Child Services,
                                  Appellee.


              Argued: January 24, 2019 | Decided: June 27, 2019

                   Appeal from the Monroe Circuit Court
       Nos. 53C06-1711-JC-851, 53C06-1711-JC-852, 53C06-1711-JC-853,
                   53C06-1711-JC-854, 53C06-1711-JC-855
                    The Honorable Frances G. Hill, Judge

         On Petition to Transfer from the Indiana Court of Appeals
                               No. 18A-JC-555



                         Opinion by Justice David
                 Chief Justice Rush and Justice Goff concur.
Justice Slaughter concurs in part and in the judgment with separate opinion in
                          which Justice Massa joins.
David, Justice.

  This case shines a spotlight on the precarious nature of CHINS
proceedings and emphasizes the need to draw measured and appropriate
procedural boundaries in these actions. Our Court has frequently
weighed in on the delicate balance between the State’s authority to
provide protection for children’s health, safety, and stability and the
procedural safeguards put in place to protect parents from State
overreach. One procedural issue that has evaded our review, however, is
whether the State may file repeated petitions alleging children are CHINS
without any new or substantially different evidence.

   In this case, the Department of Child Services filed an initial petition
alleging five Children were CHINS but failed to present sufficient
evidence of Parents’ alleged substance abuse. After a fact-finding hearing,
the trial court dismissed the case without prejudice and DCS filed a
second petition containing nearly identical allegations the day after the
first petition was dismissed. After considering evidence and testimony
that could have been presented during the first proceeding, the Children
were ultimately adjudicated CHINS.

    The central issue we address in today’s opinion is whether, in light of
the nature of CHINS proceedings, the doctrine of res judicata—and more
specifically claim preclusion—applies to bar a repeated filing of a CHINS
petition based on evidence that could have been produced in the first
filing. We find that the doctrine does apply in these proceedings, but
because the issue was not properly raised in the trial court and because we
find no fundamental error in the proceedings below, we affirm the trial
court’s finding that the Children are CHINS.


Facts and Procedural History
   Mother (V.B.) and Father (L.S.) have five children: Eq.W., M.W. (also
referred to as M.B. throughout the filings), A.W., S.W., and Ez.W.
(collectively “Children”). On June 27, 2017, the Bloomington Police


Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019       Page 2 of 20
Department responded to reports of Mother “wildly swinging [Ez.W.] in
her arms” near the Fountain Square Mall. (Appellant’s App. Vol. II at
24, 27). When police arrived, the three youngest children, A.W., S.W.,
and Ez.W., were with Mother and Father; A.W. and S.W. did not have
shoes on their feet. As police approached the family, Mother and Father
began to walk away. Police observed that Mother was unstable and
almost fell with Ez.W. in her arms. When police searched Mother’s
belongings, the officers found a hatchet and two different types of baby
formula but no bottle. The police requested assistance from the
Department of Child Services (“DCS”) after the officers detained Mother
and Father for suspected intoxication. DCS removed the Children from
Mother and Father and placed them with their paternal grandmother.

   DCS filed a petition alleging the Children were CHINS on June 29, 2017
(hereinafter “first petition”).1 In primary support of its petition, DCS
alleged the following material facts:

        •   Mother and Father were both impaired on June 27 with children
            in their care.
        •   Two of the children were not wearing shoes.
        •   Along with formula, a hatchet was found in the diaper bag. No
            bottle was located.
        •   Mother was impaired when speaking with a DCS case manager
            and could not give a complete statement.
        •   The paternal grandmother (with whom the children were
            placed) reported her belief that Mother and Father were using
            substances because of recent changes in behavior.




1 DCS alleged the Children were CHINS under Indiana Code section 31-34-1-1, which
provides that a child under eighteen years of age is a CHINS if “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 the child is not receiving care,
treatment, or rehabilitation that is “unlikely to be provided or accepted without the coercive
intervention of the court.”



Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019                           Page 3 of 20
       •    Two of the children reported a recent escalation in arguing
            between Mother and Father; one of those children suspected this
            was due to substance abuse.
       •    Mother and Father were arrested and charged with neglect of a
            dependent and public intoxication.
       •    A prior CHINS case was initiated due to alleged substance abuse
            by Mother and Father.

At a September 12, 2017, fact-finding hearing, the court heard evidence
and granted DCS’s motion to continue the hearing to present expert
testimony of Parents’ drug screens. During the subsequent hearing on
October 25, 2017, however, the court denied DCS’s motion to present
telephonic testimony of a drug screen expert. DCS offered no additional
evidence.

   On November 7, 2017, the court dismissed the first petition without
prejudice and, in doing so, denied Mother’s motion to dismiss with
prejudice. In considering the testimony of the arresting officer and the
DCS case manager that Mother and Father were visibly impaired, the
court noted that neither the officer nor the case manager requested a drug
screening for either of the parents after the arrest. Although the Parents
received a drug screening at their detention hearing, DCS did not offer
evidence of the test results after the court denied its motion for telephonic
evidence. The court ultimately concluded that DCS failed to present
sufficient evidence to meet the preponderance of evidence standard
required for a CHINS determination. While the court agreed it was
appropriate to remove the Children at the time of the arrest, it could not
find “any signs of abnormality by Mother [that] were sufficient to show []
she was impaired by drug use to the extent she was endangering the
children.” (Appellant’s App. Vol. II at 177). The court also concluded
that “[a]llegations from [the first petition] may be combined with future
allegations of neglect (or endangerment by illegal drug use) as evidence of
the element of the need for the ‘coercive intervention of the court.’” (Id.)

  On November 8, 2017—the day after the dismissal of the first petition—
DCS filed another petition (hereinafter “second petition”) alleging the five




Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019         Page 4 of 20
Children were CHINS. The second petition relied on these alleged
material facts:

    •   Mother and Father had prior involvement with the DCS, including
        a case that ended in May of 2017. Children were removed from
        Father’s care due to substance abuse and the family was reunified
        after Mother successfully completed services.
    •   DCS was also involved with the family in November 2016 when
        Mother gave birth to the youngest child in the family’s home.
        Mother admitted to heroin use during her pregnancy.
    •   Parents were arrested on June 27, 2017, for appearing to be
        intoxicated while caring for the children.
    •   Additional evidence of neglect had been obtained by the DCS
        following the dismissal of the first petition.
    •   Mother and Father both tested positive for methamphetamine
        multiple times during the pendency of the most recent CHINS case.
        Parents also failed to attend multiple drug screenings.
    •   Mother failed to follow protocol during a September 19, 2017,
        screening, her behavior was erratic and threatening, and the drug
        screen was positive for methamphetamine. The drug screener felt
        unsafe while administering the test.
    •   Father tested positive for methamphetamine during a September
        26, 2017, drug test.
    •   Father became agitated and left an October 19, 2017, Child and
        Family Team Meeting.
    •   Around October 4, 2017, Parents indicated they were having
        difficulty paying bills; their electricity and water were shut off.
    •   Parents had a drug-related criminal history.




Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019         Page 5 of 20
In authorizing the filing of this CHINS petition, the court also determined
continued placement of the children with their paternal grandmother was
necessary to protect the children.2

   At the contested fact-finding hearing, DCS called several witnesses to
offer testimony regarding the educational achievement of the Children.
M.W. and Eq.W. each testified that they had not attended school in five
years. Specifically, M.W. noted he received some sort of home schooling,
but never learned any math. Paternal Grandmother testified that she
worked to enroll several of the Children in schools and arranged tutoring
services because she was concerned with preparing the older children for
adulthood. Additionally, a DCS caseworker expressed concerns about
how S.W. did not know his alphabet or how to write his name at nine
years old.

   On January 3, 2018, the court adjudicated all five Children as CHINS.
In reaching this conclusion, the court found that Parents had failed to
provide necessary shelter, education, food, and supervision for the
Children. While “the CHINS Petition did not allege material facts of
failure to provide education, food, or safe housing, even though the DCS
did generally plead those issues by including the statutory language of
CHINS neglect in IC 31-34-1-1,” the court found it could not “ignore the
clear presentation of evidence of neglect of education (5 years without
school for the older children) and unsafe housing due to exc[]essive clutter
and unsupervised strangers wandering in the home.” (Appellant’s App.
Vol. II at 62). The court also noted that Parents were placed on notice of
these issues and failed to object to any testimony regarding education and
housing conditions. The court ordered that the Children remain with
their paternal grandmother. Only Mother appealed.




2We note that this order authorizing the filing of a second CHINS petition and the continued
detention of the Children was signed and dated on November 7, 2017—the same day the first
petition was dismissed. Curiously, DCS did not file its second verified petition alleging the
children to be CHINS or its request for continued custody until November 8, 2017. However,
the record is unclear as to whether these two documents were offered as exhibits at the time
the first petition was dismissed.



Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019                       Page 6 of 20
    In a unanimous decision, the Court of Appeals affirmed the trial court.
Matter of Eq.W., 106 N.E.3d 536, 543 (Ind. Ct. App. 2018), vacated in part,
aff’d in part. The court found Mother waived her argument that res
judicata should have applied to bar the second petition, found no
reversable error in the Children’s continued placement with their paternal
grandmother after the first petition was dismissed, and found Mother
impliedly consented to the issue of educational neglect coming up during
the fact-finding hearing. Id. at 540-41. While finding sufficient evidence to
support the CHINS adjudication, the Court of Appeals also specifically
admonished DCS for the way in which it litigated this case. Id. at 543.

   Mother petitioned for transfer, which we granted. Ind. Appellate Rule
58(A).3


Standard of Review
   In all CHINS proceedings, “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) (quoting In re N.E., 919 N.E.2d
102, 105 (Ind. 2010)). When reviewing a CHINS adjudication, “we do not
reweigh evidence or judge witness credibility” and will reverse a
determination only if the decision was clearly erroneous. In re D.J., 68
N.E.3d 574, 577-78 (Ind. 2017). “A decision is clearly erroneous if the
record facts do not support the findings or if it applies the wrong legal
standard to properly found facts.” Id. at 578 (internal quotation omitted).


Discussion and Decision
    Today we address three central questions that have been raised for our
review. First, we examine whether res judicata applies in the context of a
CHINS proceeding. Second, we determine whether Mother preserved her



3To the extent the Court of Appeals found sufficient evidence to support each of the CHINS
adjudications, we summarily affirm that portion of the opinion. See Ind. Appellate Rule
58(A)(2).



Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019                      Page 7 of 20
res judicata claim for appellate review. Finally, if Mother did not preserve
her claim, we must decide whether a court in a CHINS proceeding
commits fundamental error by failing to sua sponte apply the doctrine of
res judicata. Each of these issues will be discussed in turn.

   In short, we find that the claim preclusion branch of res judicata applies
to CHINS proceedings. Specifically, if the State wishes to refile after a
CHINS petition is dismissed, it must show that the new CHINS petition
contains allegations of material fact that could not have been included in
the dismissed action.4 Further, we also find that Mother failed to preserve
this issue for appellate review and that the trial court did not commit
fundamental error. As such, we ultimately affirm the trial court’s
judgment.


I. The doctrine of res judicata applies in CHINS
   proceedings.
   We turn first to whether the doctrine of res judicata applies in the
context of a CHINS proceeding. Because we can find no decisional
caselaw in our state specifically applying this doctrine in a CHINS context,
we must first explore the doctrine to better understand its breadth and
application. We next examine the nature of a CHINS proceeding to see if
res judicata harmonizes with the overall purpose of these proceedings.
Finding that res judicata does apply in a CHINS proceeding, we will
outline its scope and application.

  We begin with an overview of the doctrine of res judicata. Generally
speaking, res judicata operates “to prevent repetitious litigation of



4As discussed in greater detail below, we wish to make clear that not every subsequent
CHINS filing by the State is necessarily barred by res judicata. For example, we can envision
circumstances under which the State moves to dismiss a petition before a fact-finding hearing
but is forced to later refile the petition due to information that could not have been reasonably
discovered at the time of the first filing. One of the essential elements of claim preclusion is
that the prior judgment was rendered on the merits. See Ind. State Ethics Comm’n v. Sanchez, 18
N.E.3d 988, 993 (Ind. 2014). So, unless the prior action was terminated on the merits, claim
preclusion is arguably inapplicable.



Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019                          Page 8 of 20
disputes that are essentially the same, by holding a prior final judgment
binding against both the original parties and their privies.” Becker v. State,
992 N.E.2d 697, 700 (Ind. 2013). This doctrine applies “where there has
been a final adjudication on the merits of the same issue between the same
parties.” Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 993 (Ind. 2014)
(quoting Gayheart v. Newnam Foundry Co., Inc., (1979) 271 Ind. 422, 426, 393
N.E.2d 163, 167). Similar to double jeopardy in the criminal context, res
judicata operates to prevent a party from receiving the proverbial “second
bite at the apple.” See Garrett v. State, 992 N.E.2d 710, 721 (Ind. 2013);
Burks v. United States, 437 U.S. 1, 17, 98 S. Ct. 2141, 2150, 57 L.Ed.2d 1
(1978).

   There are two branches of res judicata: claim preclusion—which has
been raised in the present dispute—and issue preclusion. First Am. Title
Ins. Co. v. Robertson, 65 N.E.3d 1045, 1050 (Ind. Ct. App. 2016). Claim
preclusion can be used to bar a successive lawsuit when “a particular
issue is adjudicated and then put in issue in a subsequent suit on a
different cause of action between the same parties or their privies.” Ind.
Alcohol & Tobacco Comm’n v. Spirited Sales, 79 N.E.3d 371, 381 (Ind. 2017)
(citation omitted). Before a court can find that claim preclusion applies to
bar a subsequent action, four essential elements must be met:

      (1) The former judgment must have been rendered by a court
          of competent jurisdiction;
      (2) The former judgment must have been rendered on the
          merits;
      (3) The matter now in issue was or might have been
          determined in the former suit; and
      (4) The controversy adjudicated in the former suit must have
          been between the parties to the present action or their
           privies.


Ind. State Ethics Comm’n, 18 N.E.3d at 993.

  As one of our colleagues on the Court of Appeals recently noted, this
doctrine “undoubtedly performs functions essential to the success of our
American legal system” because it prevents the type of repeated litigation


Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019         Page 9 of 20
“that would keep parties in interminable conflict, bog down our system,
and delay or prevent the administration of justice.” State v. Stidham, 110
N.E.3d 410, 421 (Ind. Ct. App. 2018) (May, J., concurring in result). And
we agree. Res judicata is an important tool possessed by litigants and
courts alike in quickly resolving repetitive attempts at litigation. At
minimum, it appears to us that this doctrine is an essential part of civil
procedure. But does the unique nature of a CHINS proceeding allow for
stringent application of claim preclusion to bar the State from taking
multiple bites at the same apple?

   To answer that question, we pause to briefly review the nature of these
proceedings. CHINS proceedings are civil actions. In re K.D., 962 N.E.2d
1249, 1253 (Ind. 2012). As such, parties to CHINS proceedings are bound
by the Indiana Rules of Trial Procedure and generally have all the rights
and duties prescribed thereunder. Ind. Code § 31-34-9-7. But we have
also recognized that CHINS proceedings carry a significant potential to
“interfere with the rights of parents in the upbringing of their children.”
In re K.D., 962 N.E.2d at 1258 (quoting In re N.E., 919 N.E.2d 102, 108 (Ind.
2010)). Accordingly, due process concerns at all stages of a CHINS
proceeding are of paramount concern. Indeed, “procedural irregularities
… in a CHINS proceeding may be of such import that they deprive a
parent of procedural due process with respect to a potential subsequent
termination of parental rights.” Id. (quoting In re J.Q., 836 N.E.2d 961, 967
(Ind. Ct. App. 2005)).

   Because “[t]he purpose of a CHINS adjudication is to protect children,
not punish parents,” id. (citations omitted), both the legislature and our
courts have instituted significant procedural safeguards in this context—
some of which go beyond our Rules of Trial Procedure—to protect both
the safety of children and the integrity of the family unit. See, e.g., Ind.
Code § 31-32-1-4 (requiring notice of CHINS proceedings to all parties);
Ind. Code § 31-32-2-3 (giving parents the right to cross-examine witnesses,
obtain witnesses and evidence by compulsory process, and introduce
evidence); In re G.P., 4 N.E.3d 1158, 1163-64 (Ind. 2014) (finding, inter alia,
that Ind. Code § 31-34-4-6 provides a statutory right to court appointed
counsel for a parent in a CHINS case if the parent requests the
appointment of counsel and the trial court finds the parent to be indigent);


Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019         Page 10 of 20
In re T.N., 963 N.E.2d 467, 469 (Ind. 2012) (holding due process requires a
court to conduct a fact-finding hearing when one parent admits a child is a
CHINS and the other parent wishes to deny that status). It is apparent
that Indiana places extra emphasis on these proceedings and urges parties
to cautiously and meticulously move through each stage of a CHINS
proceeding.

   The State argues that the answer to the question of whether res judicata
applies in a CHINS proceeding—at least in this case—is a resounding no.
In support of its position, the State leans on codified juvenile law and the
Indiana Rules of Evidence to make the point that CHINS proceedings are
different than other types of actions. That is to say evidence of parents’
past involvement with DCS or the criminal justice system is usually
relevant to the central question of a CHINS proceeding. To be certain,
Indiana Code section 31-34-12-5 provides:

      Evidence that a prior or subsequent act or omission by a parent,
      guardian, or custodian injured or neglected a child is
      admissible in proceedings alleging that a child is a child in
      need of services to show the following:
        (1) Intent, guilty knowledge, the absence of mistake or
            accident, identification, the existence of a common scheme
            or plan, or other similar purposes.
        (2) A likelihood that the act or omission of the parent,
            guardian, or custodian is responsible for the child's current
            injury or condition.


At first blush, this statute supports the State’s position that a parent’s
prior acts are relevant to that parent’s fitness at the time of a CHINS
proceeding. See Matter of M.B., 666 N.E.2d 73, 76 (Ind. Ct. App. 1996)
(finding that, albeit during a termination of parental rights hearing, courts
should judge a parent’s fitness at the time of the hearing and should
consider habitual patterns of conduct to determine probability of future
neglect or deprivation).

    Indeed, some Indiana courts have found that when children are
alleged to be CHINS under Indiana Code section 31-34-1-1, which is the


Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019           Page 11 of 20
statute relied upon in the present case, a parent’s character is a material
issue in the proceeding. Matter of J.L.V., Jr., 667 N.E.2d 186, 190 (Ind. Ct.
App. 1996). 5 To that end, the court in Matter of J.L.V., Jr. reasoned Indiana
Rule of Evidence 405(b)6 allows admission of specific instances of a
parent’s character because “a parent’s past, present, and future ability to
provide sufficient care for his or her child forms the basis for a CHINS
adjudication” and “a parent’s character is an integral part of assessing that
ability.” Id. at 190-91. Taken together, the State advances a colorable
argument that CHINS proceedings are distinct enough from ordinary civil
proceedings such that evidence of a parent’s prior acts is pervasively
relevant to all potential future CHINS proceedings involving the parents
and children.

    We agree with the State’s general position that past acts by parents
can be relevant to new CHINS filings involving the same parents and
children. There are several compelling reasons to stand by this approach,
none clearer than the legislature’s express approval of this practice. See
Ind. Code § 31-34-12-5. Additionally, as discussed above, the nature of a
CHINS proceeding is such that a trial court must consider a broad range
of evidence to ensure the State has met its burden in proving its case,
including “consider[ing] the family’s condition not just when the case was
filed, but also when it is heard.” In re D.J., 68 N.E.3d 574, 580 (Ind. 2017)
(citation omitted). But we also think that this procedure is ripe for
potential abuse by the State. The dispute before us today emphasizes this
point.

    Here, DCS filed its first petition alleging the Children were CHINS on
June 27, 2017. Distilled to its essential material facts, the petition was
based on Mother and Father’s alleged impairment, prior DCS involvement




5Matter of J.L.V., Jr. examined a substantially similar version of Indiana Code section 31-34-1-1
that existed prior to the recodification of Title 31. See 1997 Ind. Acts 315 (recodification). That
version was codified at Indiana Code section 31-6-4-3(a).
6Indiana Rule of Evidence 405(b) provides: “When a person’s character or character trait is an
essential element of a charge, claim, or defense, the character or trait may also be proved by
relevant specific instances of the person’s conduct.”



Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019                           Page 12 of 20
due to substance abuse, and Parents’ ultimate arrest while several of the
Children were in their presence. Because DCS’s motion to present
telephonic testimony of Parents’ drug screen results was denied and
because DCS apparently presented no other evidence to the court, the first
petition was dismissed for the State’s failure to meet its burden of proof.
The very next day, DCS filed its second petition that contained no
additional allegations that would have occurred after the October 25,
2017, fact-finding hearing on the first petition.

    To us, this case screams out as an obvious “second bite at the apple.”
The fact of the matter is that DCS failed to present sufficient evidence to
meet its burden of proof on the first go–round. While the record is
unclear as to why the trial court allowed the second petition to be filed,
the court specifically denied Mother’s request for dismissal with prejudice
and noted that the allegations of the first petition could be combined with
future allegations as evidence of the need for coercive court intervention.
DCS plainly failed to follow this instruction and filed a second petition
with essentially the same allegations as its first petition. While we
understand the pressures placed on DCS to protect the safety and well-
being of children in our state, we can in no way endorse the procedural
tactics employed in this case to essentially string out the CHINS
proceeding until enough evidence was collected, all the while keeping the
children separated from their parents. There is simply too much at stake
to condone these actions.

    We hold today that the claim preclusion branch of res judicata applies
to CHINS proceedings. We extend this basic principle to these
proceedings in large part because of the heightened due process
protections we give to children and parents involved in CHINS
proceedings. For example, invocation of this doctrine could prevent
repeated filings by DCS with no new factual basis until one petition finally
sticks. It could also prevent repetitive litigation of issues that have been or
could have been decided in an initial CHINS filing. As such, application
of this doctrine to CHINS proceedings encourages DCS to fully investigate
and present a more complete picture of the type of alleged conduct
underpinning a CHINS petition. After all, trial courts certainly do not
suffer when an issue is fully briefed and supported by evidence.


Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019         Page 13 of 20
     That is not to say application of res judicata in a CHINS proceeding is
without limits. We stand by the proposition that, “[b]y their very nature,
[CHINS] cases do not fit neatly defined guidelines.” In re K.D., 962 N.E.2d
at 1255. DCS must necessarily rely on the past actions of parents to give a
trial court the full story of why a CHINS petition was filed in the first
place. But to escape the preclusive effect of res judicata in a CHINS
proceeding, the State’s subsequent petition must include new allegations
of material fact separate from what was available to DCS to use at the
original fact-finding hearing.7 This new evidence will necessarily include
allegations of new material facts that took place in time after the relevant
CHINS petition was dismissed.

     In our view, this rule bridges the gap between reliable application of
claim preclusion and the unique nature of CHINS proceedings. Parties
seeking to bar a subsequent CHINS petition on claim preclusion grounds
must still demonstrate each of the four elements of claim preclusion we
mentioned above. See Ind. State Ethics Comm’n, 18 N.E.3d at 993 (outlining
the four elements of claim preclusion). But in examining the third element
of claim preclusion—that the matter at issue was, or could have been,
determined in the prior action—courts must also consider the rule we
have enunciated today.

    Practically speaking, if the parent or guardian is successful in showing
claim preclusion applies to bar a subsequent petition, the CHINS petition
must be dismissed. However, this dismissal does not mean the State is
forever barred from filing a subsequent CHINS petition or even from
using a parent’s prior actions as evidence in support of a new filing. As
long as there are no other procedural bars to the filing and the State
demonstrates that the subsequent petition contains new allegations of




7See Matter of J.R., 98 N.E.3d 652, 655 (Ind. Ct. App. 2018) (finding that, when a CHINS
petition should have been dismissed for failure to complete a factfinding hearing within the
statutory timeframe, DCS could refile the petition, but “would not be able to rely solely on the
evidence that was admitted at the original CHINS factfinding” and instead “would have to
also submit new evidence regarding the conditions at the current time”).



Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019                        Page 14 of 20
conduct that took place after the dismissal of the prior proceeding, the
State may file a new CHINS petition.

    Having determined that claim preclusion applies to CHINS
proceedings, we now consider whether this issue was properly placed
before the trial court for its consideration.


II. Mother failed to raise this issue in the trial court.
 The State contends that, even if res judicata does apply in this context,
Mother did not preserve this issue for our review because she failed to
raise the issue in the trial court. Mother’s primary argument on this point
is that no motion was required. In other words, Mother believes a trial
court does not have discretion to ignore res judicata. In the alternative,
Mother argues that her closing argument during the fact-finding hearing
on the second petition should be construed as a motion to dismiss. We
will address each of Mother’s arguments in turn.

   Mother urges us to find a “trial court … does not have discretion to
ignore the doctrine of res judicata.” M.G. v. V.P., 74 N.E.3d 259, 263 (Ind.
Ct. App. 2017). In other words, Mother would have us hold that a trial
court must look beyond the parties’ pleadings, filings, and motions and
sua sponte dismiss a CHINS petition if it perceives the new filing is
precluded by a prior adjudication. We decline to hold as much and find
that the issue must be raised by a party to the proceeding so as to bring it
to the court’s attention for review. Once the issue is raised and proven, a
court does not have discretion to ignore the doctrine of res judicata. This
finding held true in M.G., the case Mother uses in support of her primary
position, where the parties put the trial court on notice that a third
consecutive protective order petition should have been dismissed on res
judicata grounds. Id. at 264.

  Our holding on this point also finds support in the general structure of
CHINS proceedings. Although the burden of proof rests on the State to
prove the basic elements of CHINS allegations, “each parent has the right
to challenge those elements.” In re K.D., 962 N.E.2d at 1254. As such,
Mother had at least some cognizable responsibility to challenge the


Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019        Page 15 of 20
CHINS petition on res judicata grounds. Furthermore, to require the trial
court to rule from the bench on this issue without the benefit of advocacy
from either party would deprive reviewing courts of an adequate record
from which to assess the issue. We entrust trial courts with many
responsibilities and decline to add one more requirement to this list,
especially when attorneys are present to keep the court informed of all
potential issues.

   Having found no requirement that trial courts must address res
judicata issues sua sponte, we turn to Mother’s next argument that, during
her closing argument at the second fact-finding hearing, she in fact did
argue the petition should be barred on res judicata grounds. In relevant
part, Mother argued:

      The end of June the children were removed and the parents
      requested a contested fact-finding hearing. They didn’t get it
      until September … 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. [T]hey 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 … in the time since they have lost their initial
      petition…. [We] are supposed to be hearing that new evidence
      of … what circumstances have changed since we were here in
      September and DCS failed to prove their case the first time … I
      [don’t] think we’ve heard any new information.


(Tr. at 71-72). It is difficult for us, however, to recognize a motion from
these closing arguments and we do not expect the trial court would have
been able to extrapolate a motion from this argument either.

  Nevertheless, Mother asks our Court to not elevate form over substance
and construe her closing argument as an oral motion to dismiss the
petition based on claim preclusion. As we have previously said, CHINS
proceedings are civil in nature and are thus governed by the Indiana


Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019         Page 16 of 20
Rules of Trial Procedure. Ind. Code § 31-34-9-7. In relevant part, Trial
Rule 7(B) provides that “[u]nless made during a hearing or trial, or
otherwise ordered by the court, an application to the court for an order
shall be made by written motion. The motion shall state the grounds
therefor and the relief or order sought.” While the best practice is to file a
written motion with the court, Trial Rule 7(B) contemplates that parties
have the ability to make oral motions during a hearing or trial. However,
Trial Rule 7(B) requires that no matter whether written or made orally, a
motion must state the grounds of the motion and the relief or order
sought. See Moore v. Indiana, 999 F.2d 1125, 1131 (7th Cir. 1993) (finding
under Federal Rule of Civil Procedure 7(b) that “[a]ll motions…must set
forth with particularity the relief or order requested and the ground
supporting the application”). Mother did not meet that threshold in this
case.

   We further note that res judicata is usually an affirmative defense
under Trial Rule 8(C). Under that rule, parties seeking to invoke the
doctrine of res judicata must do so in a responsive pleading. However,
the structure of an initial hearing in a CHINS action is not conducive to
responsive pleadings. Indiana Code chapter 31-34-10 sets forth the
parameters of initial hearings. At this hearing, the trial court informs the
parties of several important rights, duties, and procedural requirements.
See Ind. Code §§ 31-34-10-4, -5. One critical duty of the court is to
“determine whether the parent, guardian, or custodian admits or denies
the allegations of the [CHINS] petition.” Ind. Code § 31-34-10-6. The
statute further provides, “A failure to respond constitutes a denial.” Id.
(emphasis added). When allegations are denied, the matter is set for a
fact-finding hearing. Ind. Code § 31-34-11-1. See also In re K.D., 962 N.E.2d
at 1255.

   In our view, the statute outlining the procedure for initial hearings
gives protections to parents who do not respond—whether by affirmative
choice or by neglecting to do so—to the allegations set forth in a CHINS
petition by automatically requiring that the matter move to a fact-finding
hearing in front of the court. Thus, it does not appear there is a
requirement that a parent must file a responsive pleading. See generally
Matter of K.P.G., 99 N.E.3d 677, 681 (Ind. Ct. App. 2018) (stating there was


Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019         Page 17 of 20
no requirement for a responsive pleading in an action where Mother
contested personal jurisdiction under Trial Rule 12(B)(2)). Still, the best
practice for the moving party is to move for dismissal on res judicata
grounds at the earliest opportunity.8

   At any rate, we find that Mother failed to move for dismissal on res
judicata grounds. As such, this issue is waived on appeal. See Brewington
v. State, 7 N.E.3d 946, 974 (Ind. 2014) (citation omitted). But whenever
possible, this Court “prefer[s] to resolve cases on the merits instead of on
procedural grounds like waiver.” Hale v. State, 54 N.E.3d 355, 359 (Ind.
2016) (quoting Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015)). Having
determined that res judicata applies to CHINS proceedings and finding
Mother waived this issue on appeal, we will examine whether the trial
court’s failure to address the res judicata issue constituted fundamental
error.


III. The trial court did not commit fundamental error
     by failing to address the issue of res judicata.
    On rare occasions, appellate courts may analyze an issue under the
fundamental error doctrine to examine an otherwise procedurally
defaulted claim. Jewell v. State, 887 N.E.2d 939, 942 (Ind. 2008). However,
this review is extremely narrow and “available only when the record
reveals a clearly blatant violation of basic and elementary principles,
where the harm or potential for harm cannot be denied, and which
violation is so prejudicial to the rights of the defendant as to make a fair
trial impossible.” Id. We must review the alleged misconduct in the




8 As we have already established, if a party moves for dismissal on res judicata grounds
during a hearing, Trial Rule 7(B) allows for the motion to be made orally. If a party makes an
oral motion, however, we urge the trial court to ensure that “(1) the motion is on the record,
(2) the parties are present or promptly notified of the motion, and (3) the motion—including
whose it is—is clearly reflected on the chronological case summary (“CCS”).” In re Adoption of
J.R.O., 95 N.E.3d 73, 74 (Ind. 2018) (Rush, C.J., dissenting from denial of transfer). This
practice helps create a clear record, which is essential for appellate review. Id. (citing James v.
State, 716 N.E.2d 935, 941 (Ind. 1991)).



Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019                           Page 18 of 20
context of all that happened in the proceeding and all the relevant
information presented to the court. See Ryan v. State, 9 N.E.3d 663, 668
(Ind. 2014).

   Examining the case before us, we ultimately conclude there was no
fundamental error. We subscribe to the idea that “[a] finding of
fundamental error essentially means that the trial judge erred … by not
acting when he or she should have, even without being spurred to action
by a timely objection.” Brewington, 7 N.E.3d at 974 (internal quotations
and citation omitted). Certainly, “[a]n error blatant enough to require a
judge to take action sua sponte is necessarily blatant enough to draw any
competent attorney’s objection.” Id. Having found no requirement today
that a trial court must sua sponte address perceived res judicata issues in
CHINS proceedings, we cannot now say the trial court committed
fundamental error by failing to do so.

   As such, the judgment of the trial court is affirmed.


Conclusion
   As a final point, we re-emphasize the critical importance of the
procedural safeguards put in place at every stage of a CHINS proceeding.
We in no way condone the repetitive filing put into issue in the present
action. We expect a lot out of attorneys in our state and hold DCS to the
same standard of practice as attorneys in other civil proceedings. We are
confident that DCS can do better to protect the integrity of these
proceedings and clamp down on repetitious filings, especially when it has
the opportunity to present detailed evidence to the trial court and bring
about a quick and fair disposition on the first try.

   To summarize our decision today, we find that the claim preclusion
branch of res judicata applies in the context of a CHINS proceeding.
Because Mother failed to adequately raise this issue in the trial court, the
issue was waived on appeal. Trial courts are not required to sua sponte
address perceived res judicata issues and we find no fundamental error in
these proceedings. We also summarily affirm the portion of the Court of




Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019       Page 19 of 20
Appeals opinion in this case that found sufficient evidence to support a
CHINS adjudication for each child. Ind. Appellate Rule 58(A)(2).

   Accordingly, we affirm the trial court’s judgment that each child in this
case was a child in need of services.


Rush, C.J., and Goff, J., concur.
Slaughter, J., concurs in part and in the judgment with separate
opinion in which Massa, J., joins.



ATTORNEY FOR APPELLANT
Kyle K. Dugger
Monroe County Public Defender’s Office
Bloomington, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019       Page 20 of 20
Slaughter, J., concurring in part and in the judgment.

   I agree with much of the Court’s opinion, including its judgment that
Mother gets no relief. I write separately to clarify what I believe our
governing rules of trial procedure require of litigants in child-in-need-of-
services cases.

   I’ll start with my three areas of agreement with the Court. First,
principles of res judicata apply in CHINS proceedings. Second, Mother
waived any objection on grounds of res judicata by failing to raise the
issue in the trial court. Third, the trial court did not commit fundamental
error by failing to raise the issue on its own. Thus, I share the Court’s view
that the trial court’s CHINS adjudication against Mother must be
affirmed. Despite these substantial areas of overlap, I am unable to join
the Court’s opinion in full because of what strike me as its misstatements
of governing law, some of which cannot be reconciled with our trial rules.

   To begin with, the Court treats the doctrine of res judicata as having
two branches—one claim preclusion; the other issue preclusion. In my
view, these two forms of preclusion are not separate branches but separate
trees. The form of preclusion at issue here—res judicata—ought to refer
solely to claim preclusion. Claim preclusion requires, among other things,
that the court in the first action have decided the merits of a claim and, in
a second action, the losing party in the first action have sought to relitigate
what was—or might have been—decided in the first. Indiana State Ethics
Comm'n v. Sanchez, 18 N.E.3d 988, 993 (Ind. 2014). This contrasts with
another form of preclusion—issue preclusion, also known as collateral
estoppel—which “bars subsequent relitigation of the same fact or issue
where that fact or issue was necessarily adjudicated in a former lawsuit”.
Nat'l Wine & Spirits, Inc. v. Ernst & Young, LLP, 976 N.E.2d 699, 704 (Ind.
2012). Issue preclusion applies even if a subsequent lawsuit concerns a
different claim. Id.

  Next, although res judicata (claim preclusion) generally applies in
CHINS and other civil actions, it does not apply here because the trial
court’s initial judgment—a dismissal without prejudice—was not a
decision on the merits. Wood v. Zeigler Bldg. Materials, Inc., 436 N.E.2d
1168, 1170 (Ind. Ct. App. 1982) (“A dismissal without prejudice is not a
determination of the merits of a complaint and does not bar a later trial of
the issues.”); accord Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497,
505–06 (2001). As Mother requested, the trial court should have dismissed
the first CHINS case with prejudice. The Department went to trial and
presented evidence in support of its claim that Mother’s children needed
services. Given the trial court’s determination that the Department failed
to sustain its burden of proof, the court should have entered a merits
judgment against the Department and in favor of Mother. The court’s
failure to do so was reversible error. But Mother elected not to appeal,
although the without-prejudice dismissal was a final judgment. Wall v.
Hutton, 92 Ind. App. 705, 706, 173 N.E. 600, 601 (1930).

   Finally, when (unlike here) a trial court has entered a merits judgment,
to preserve a res judicata objection, the prevailing party must object in the
second case by asserting the objection as an affirmative defense. Our trial
rules expressly identify “res judicata” as an affirmative defense that
“shall” be asserted in a “responsive pleading”, Ind. Trial Rule 8(C), on
pain of having the defense waived. Willis v. Westerfield, 839 N.E.2d 1179,
1185 (Ind. 2006) (citing T.R. 8(C)). I do not quarrel with the Court that an
objecting party may also need to move separately to preserve this
objection. But given Trial Rule 8(C), any such motion is a necessary but
insufficient condition for preserving it. Yet the Court dispenses with the
responsive-pleading requirement by observing that the legislature
purports to excuse parents (and others) against whom CHINS claims have
been filed from having to file a responsive pleading. See Ind. Code § 31-
34-10-6.

   The problem with the Court’s conclusion, even ignoring the
longstanding rule that on matters of procedure the legislature’s edicts
must yield to our own rules, Garner v. Kempf, 93 N.E.3d 1091, 1099 (Ind.
2018), is that the scope of this statute is not as far-reaching as the Court
suggests. By its terms, Section 31-34-10-6 merely says that a parent’s
failure to respond to a CHINS petition means its allegations are denied.
The statute does not say that a CHINS respondent’s silence at the pleading
stage preserves his affirmative defenses.




Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019            Page 2 of 3
   Trial Rule 1 could not be clearer that “all suits of a civil nature”—which
includes CHINS cases—are governed by our trial rules: “Except as
otherwise provided, these rules govern the procedure and practice in all
courts of the state of Indiana in all suits of a civil nature whether
cognizable as cases at law, in equity, or of statutory origin.” T.R. 1
(emphasis added).

   Perhaps the Court is correct in implying that Rule 8(C)’s requirements
of a responsive pleading do not reflect the reality of CHINS practice on
the ground in our trial courts. But as long as the trial rules apply to all
civil suits, we should enforce the rules as written and not sanction the
short-cut practices that today’s decision ratifies.


Massa, J., joins.




Indiana Supreme Court | Case No. 18S-JC-603 | June 27, 2019          Page 3 of 3
