                                                                          FILED
                                                                  May 05 2020, 2:11 pm

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court


                           IN THE

   Indiana Supreme Court
              Supreme Court Case No. 20S-JC-296

In the Matter of R.L. (Minor Child); J.R. (Mother),
                            Appellant,

                               –v–

Indiana Department of Child Services and Child
               Advocates, Inc.,
                            Appellees.


         Argued: February 20, 2020 | Decided: May 5, 2020

    Appeal from the Marion Superior Court, Juvenile Division
                      No. 49D09-1803-JC-638
              The Honorable Marilyn Moores, Judge
             The Honorable Gael Deppert, Magistrate

     On Petition to Transfer from the Indiana Court of Appeals
                         No. 18A-JC-2927



                    Opinion by Justice David
 Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.
David, Justice.

   Last year, our Court handed down Matter of Eq.W., 124 N.E.3d 1201
(Ind. 2019), a case in which we determined that the doctrine of claim
preclusion applies to child in need of services (CHINS) proceedings.
Without the benefit of that opinion, the parties in this case argued over
whether the Department of Child Services (DCS) could file a subsequent
CHINS petition alleging R.L. was a child in need of services after an initial
petition was dismissed with prejudice. Although the second case
proceeded and R.L. was found to be a CHINS, the Court of Appeals
reversed, holding DCS was barred from relitigating this matter. After
Matter of Eq.W. was handed down, however, the State successfully
petitioned for rehearing and the Court of Appeals reversed course,
ultimately affirming the juvenile court’s CHINS finding.

   Mother sought transfer, arguing that DCS should have been barred
from filing a successive CHINS action after the first petition was
dismissed with prejudice. Applying Matter of Eq.W. to the circumstances
of this case, we agree with Mother and find that the subsequent CHINS
petition should have been barred. We therefore reverse the juvenile court
and dismiss the present CHINS petition with prejudice.


Facts and Procedural History
   R.L. was born on November 2, 2017, to J.R. (Mother) and R.L. (Father).
Shortly after his birth, DCS removed R.L. from his parents’ care. On
November 6, 2017, DCS filed a petition alleging R.L. was a child in need of
services pursuant to Indiana Code section 31-34-1-1. The petition alleged
the following facts:

    •   R.L.’s parents failed to provide him with a safe, stable, and
        appropriate living environment;
    •   The parents were involved in a separate CHINS case regarding
        another child;
    •   Services in the other case had not been successfully completed to
        remedy the reasons for DCS’s involvement;




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    •   Mother was found unsupervised with the other child despite a
        court order prohibiting such conduct;
    •   Mother struggled with anger issues and had not successfully
        demonstrated an ability and willingness to appropriately care for
        R.L.; and
    •   Father discontinued parenting time with the other child and had
        not shown an ability to care for R.L.’s safety and wellbeing.

An initial hearing on the petition took place on November 7, 2017, and a
factfinding hearing took place on January 26, 2018.

   On March 1, 2018, the juvenile court determined R.L. was not a child in
need of services. Among other things, the court found DCS made no
service referrals for Mother related to R.L., DCS failed to establish an
adequate foundation for relevant testimony and evidence, and it was
uncontroverted that Mother had a stable home and was aware of local
community resources for her family. Because the manner of dismissal was
unspecified, the action was dismissed with prejudice. See Ind. Trial Rule
41(B).

   On March 2, 2018—the day after the first petition was dismissed—DCS
contacted Mother to complete a home visit and assess the condition of her
home. Between the dismissal of the first petition and the home visit
request, R.L. remained in foster care due to ongoing safety concerns with
Mother’s home. Although the family case manager (FCM) was aware the
CHINS petition had been dismissed, the FCM did not share this
information with Mother or indicate that R.L. could have been returned to
her care. Mother told the FCM that her home was not in a safe condition
because of a mold issue and that she was waiting to be switched to a
different apartment. Mother also refused to allow the FCM to inspect her
home.

  On March 6, 2018, DCS filed a subsequent petition alleging R.L. was a
CHINS. The subsequent petition was based on the following alleged facts:

    •    Mother and Father failed to provide R.L. with a safe, stable, and
         appropriate living environment;




Indiana Supreme Court | Case No. 20S-JC-296 | May 5, 2020           Page 3 of 10
    •    Mother continued to struggle with mental health issues that
         interfered with her ability to care for R.L.;
    •    Though Mother completed a mental health evaluation, she was not
         taking her prescribed medication or following through with
         treatment;
    •    Mother was currently involved in a DCS case with her other child
         and services had not been successfully completed in that case;
    •    Mother still struggled with basic care for infants including using
         proper amounts of formula and demonstrating a lack of
         willingness to change diapers;
    •    Mother and Father’s personal relationship remained aggressive;
         and
    •    Mother reported her home was unsafe and refused to allow the
         FCM to enter.

Mother moved to dismiss the petition on claim preclusion grounds and
renewed her motion at a March 16, 2018, pretrial hearing. The juvenile
court denied Mother’s motion and ultimately found R.L. was a child in
need of services. Mother appealed.

   In a unanimous opinion, the Court of Appeals reversed. Matter of R.L.,
126 N.E.3d 864, 871 (Ind. Ct. App. 2019), modified on reh’g. The court found
the second petition was barred by res judicata and should have been
dismissed because “a number of the issues litigated by DCS in the 2018
CHINS were, or could have been, litigated in the 2017 CHINS.” Id. at 869.
More specifically, “Mother’s compliance with services in [the other
child’s] CHINS, her mental health, her parenting abilities, and domestic
violence” were all issues that were already litigated or otherwise known
to DCS during the first CHINS proceeding. Id. at 870. However, because
there were new allegations—namely that Mother failed to provide
formula during a February 2018 visit, had failed to provide a safe home
environment, and struggled with basic infant care—the court remanded
the matter to the juvenile court to reconsider the second CHINS petition
“without reliance on issues that were already litigated or could have been
litigated at the time of the 2017 CHINS.” Id. at 871.




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   After the Court of Appeals issued its opinion, our Court handed down
Matter of Eq.W., 124 N.E.3d at 1201, which prompted the State to file a
petition for rehearing. Matter of R.L., 133 N.E.3d 173, 174 (Ind. Ct. App.
2019), on reh’g. On rehearing, the Court of Appeals concluded, “Eq.W. has
now clarified that DCS may rely on evidence of a parent’s prior conduct in
bringing a subsequent CHINS, and, therefore, contrary to this court’s
decision, the trial court must be able to rely on that evidence in rendering
its determination.” Id. at 175. Opining that Eq.W.’s holding empowered
DCS to file the subsequent CHINS petition, the Court of Appeals affirmed
the trial court in all respects. Id. at 176.

  Mother sought transfer, which we now grant, thereby vacating the
Court of Appeals opinion. Ind. Appellate Rule 58(A).


Standard of Review
   When we review a CHINS adjudication, we neither reweigh evidence
nor judge witness credibility. In re D.J., 68 N.E.3d 574, 577-78 (Ind. 2017).
We reverse a CHINS finding only if the decision was clearly erroneous. Id.
at 578. “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. (internal quotation omitted).


Discussion and Decision
  On transfer, Mother argues that the trial court should have granted her
motion to dismiss the second petition because it was barred by claim
preclusion. More specifically, Mother urges this Court to find that the
matters alleged in the second petition were or could have been litigated in
the first petition and any new allegations of fact in the second petition
were not material. DCS argues the opposite, believing that claim
preclusion is inapplicable in this case because the subsequent petition
introduced new allegations of material fact such that, when combined
with Mother’s previous acts, the petition would survive a motion to
dismiss.



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   Both sides attempt to use our recent decision in Matter of Eq.W. as
sword and shield. Matter of Eq.W. stands for the proposition that when
DCS attempts to bite the proverbial apple, it must do so with
intentionality and cannot engage in piecemeal litigation to get subsequent
bites at the same apple. In other words, DCS must have its house in order
when it institutes a CHINS proceeding or else it risks dismissal that will
bar future actions. In our view, DCS has attempted to take the prohibited
second bite in this case after it largely failed to make its case during the
first CHINS filing. For this reason—and those expressed below—we agree
with Mother that the second CHINS petition pertaining to R.L. should
have been barred by the doctrine of claim preclusion.


                                            I.
   Our decision in Eq.W. held that claim preclusion applies to CHINS
proceedings. 124 N.E.3d at 1211. The opinion laid out the four essential
elements of claim preclusion:

      (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.


Id. at 1209 (quoting Ind. State Ethics Comm’n v. Sanchez, 18 N.E.3d 988, 993
(Ind. 2014)). Focusing on element (3), our opinion noted “application of
res judicata in a CHINS proceeding is [not] without limits.” Id. at 1212.
That is, “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.” Id. So, as a corollary of element (3), our Court found any
subsequent CHINS petition “must include new allegations of material fact
separate from what was available to DCS to use at the original fact-finding



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hearing” that “took place in time after the relevant CHINS petition was
dismissed.” Id.

    Our observations in Eq.W. are in step with several of our sister courts
across the nation. For example, in People ex rel. L.S., 721 N.W.2d 83 (S.D.
2006), the South Dakota Supreme Court considered the doctrine of res
judicata through the lens of a child welfare proceeding. There, the court
observed, “when it comes to protecting children res judicata should be
cautiously applied.” Id. at 90. This was because “[t]he protection of
children from continuing abuse and neglect is not the type of needless
litigation contemplated by the doctrine [of res judicata].” Id. at 90. See also
In re Juvenile Appeal (83-DE), 460 A.2d 1277, 1282 (Ct. 1983) (observing
claim preclusion “should be flexible and must give way when [its]
mechanical application would frustrate other social policies based on
values equally or more important than the convenience afforded by
finality in legal controversies”); Interest of J.J.T and T.J.T., 877 P.2d 161, 163
(Utah Ct. App. 1994) (sharing concerns that “a hyper-technical application
of res judicata is improper in adjudications where the welfare of children
is at stake” because “the child’s environment is constantly evolving”). In
allowing the State to present evidence of changed circumstances, the
South Dakota court concluded flexibility was needed in these cases
because “[t]o hold otherwise is to turn our legal process for protecting
abused and neglected children into a hollow ritual.” People ex rel. L.S., 721
N.W.2d at 92.

   More recently, the Nebraska Supreme Court held that “the doctrine of
claim preclusion should not be strictly applied in abuse and neglect cases
when doing so would fail to protect children from continuing abuse or
neglect.” In re Interest of Noah B., 891 N.W.2d 109, 124 (Neb. 2017). The
court cautioned, however, that “the State does not have unfettered
authority to adjudicate abuse and neglect allegations in a piecemeal
fashion, free from the constraints of claim preclusion.” Id. To that end—
and consistent with our holding in Matter of Eq.W.—the State must rely on
evidence “from the time period after the prior adjudication to prove the
allegations of the supplemental petition” so as to escape the preclusive
effect of res judicata. Id. at 124-25. This conclusion sounds in the basic
premise that “the doctrine of claim preclusion cannot settle a question of a


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child’s welfare for all time to come; it cannot prevent a court at a
subsequent time from determining what is best for the children at that
time.” Id. at 122 (cleaned up) (quotation omitted).

   So in sum, the basic framework of Eq.W. straddled the divide between
finality in a court’s determination and the flexibility demanded by the
evolving nature of CHINS cases. As was the case in Matter of Eq.W. and
many of the aforementioned cases from other states, the battleground
often concerns the third element of claim preclusion: whether the matter
now in issue was or might have been determined in the former suit.
While DCS must introduce new allegations of material fact in a
subsequent petition, Eq.W. also cautioned courts against turning a blind
eye to piecemeal litigation and/or actions that undermine the confidence
we must place in our State’s child welfare system. Here, we take issue
with both.


                                            II.
  Recall that Matter of Eq.W. observed, “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.” 124 N.E.3d at 1212. There, we agreed
with DCS’s argument that “past acts by parents can be relevant to new
CHINS filings involving the same parents and children.” Id. at 1211.
However, our opinion also warned that repeated filings are “ripe for
potential abuse” and we declined to “endorse the procedural tactics
employed in [Eq.W.] to essentially string out the CHINS proceeding until
enough evidence was collected, all the while keeping the children
separated from their parents.” Id.; see also In re Interest of Noah B., 891
N.W.2d at 124. In our view, the record in this case demonstrates the type
of piecemeal litigation that Eq.W. sought to prevent.

   First, the second petition largely duplicated allegations or relied on
matters that could have been determined in the first petition. These
included allegations that Mother was currently involved in a separate
CHINS action with her other child, that services had not been completed
in that case, that Mother failed to follow through with treatment after a
psychological evaluation, and that Mother and Father had a tempestuous


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relationship. To be sure, these are serious allegations, but DCS failed to
carry its burden in the first petition, which ultimately led to dismissal with
prejudice.

   Second, the circumstances surrounding the second petition are
concerning. Although the first petition had been dismissed, Mother either
did not know about the dismissal or had no knowledge that R.L. should
have been returned to her care. The FCM was involved in both the first
and second petitions; she was aware of the first petition’s dismissal but
made no effort to return the child. Without speculating whether Mother’s
actions would have been different had she known that her child could
have been returned before refusing the FCM’s request to inspect her
apartment, we are concerned that Mother’s refusal became part and parcel
of the second filing.

   Finally, our underlying rationale in Matter of Eq.W. is amplified in this
case, especially when it comes to procedural protections for children and
parents. “The purpose of a CHINS adjudication is to protect children, not
punish parents.” In re K.D., 962 N.E.2d 1249, 1258 (Ind. 2012) (citation
omitted). Parents should appropriately be held accountable for the care of
their children, but DCS also bears responsibility to move “cautiously and
meticulously … through each stage of a CHINS proceeding.” Matter of
Eq.W., 124 N.E.3d at 1210. The tactics employed by DCS in this case
undermine the confidence parents have in Indiana’s child welfare system.
This practice should not be condoned, especially when DCS has vastly
superior resources at its disposal to properly and accurately move
through each stage of the CHINS proceeding.

   For these reasons, we find that the juvenile court should have granted
Mother’s motion to dismiss. We therefore reverse the juvenile court and
dismiss the present CHINS action with prejudice. See id. at 1212
(observing that, “Practically speaking, if the parent or guardian is
successful in showing claim preclusion applied to bar a subsequent
petition, the CHINS petition must be dismissed”).




Indiana Supreme Court | Case No. 20S-JC-296 | May 5, 2020           Page 9 of 10
Conclusion
   Matter of Eq.W. sought to prevent the type of piecemeal litigation that
occurred in this case. The subsequent petition was largely duplicative of
the first and enunciated three new, weakly supported allegations. At least
one of those allegations was likely the result of DCS’s failure to inform
Mother that her child could have been returned to her care—information
that could have further informed Mother’s actions. If there is to be any
predictability for parents, children, and the State in these proceedings, we
must hold each party properly accountable to their individual
responsibilities. Therefore, Mother’s motion to dismiss should have been
granted because under the framework of Eq.W., the subsequent petition
should have been barred by the doctrine of claim preclusion.

  We reverse the trial court and dismiss the present CHINS petition with
prejudice.


Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.



ATTORNEYS FOR APPELLANT
Suzy St. John
Valerie K. Boots
Marion County Public Defender Agency
Indianapolis, Indiana

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

Katherine Cornelius
Abigail Recker
Deputy Attorneys General
Indianapolis, Indiana




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