                                                                                 FILED
                                                                            May 29 2019, 11:08 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Andrew Bernlohr                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                      Attorney General of Indiana
                                                           Abigail R. Recker
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of R.L. (Minor                               May 29, 2019
Child)                                                     Court of Appeals Case No.
                                                           18A-JC-2927
and
                                                           Appeal from the Marion Superior
J. R. (Mother),                                            Court
Appellant-Respondent,                                      The Honorable Marilyn Moores,
                                                           Judge
        v.
                                                           The Honorable Gael Deppert,
                                                           Magistrate
Indiana Department of Child
                                                           Trial Court Cause No.
Services,
                                                           49D09-1803-JC-638
Appellee-Petitioner,

and

Child Advocates, Inc.,

Guardian Ad Litem.



Riley, Judge.

Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019                              Page 1 of 14
                                    STATEMENT OF THE CASE
[1]   Appellant-Respondent, J.R. (Mother), appeals the juvenile court’s denial of her

      motion to dismiss the petition of Appellees’-Petitioners’, Department of Child

      Services (DCS) and Child Advocates, Inc., (collectively, DCS), alleging that her

      minor child, R.N.L. (Child), is a child in need of services (CHINS).


[2]   We reverse and remand for further proceedings.


                                                         ISSUE
[3]   Mother presents one issue on appeal: Whether the juvenile court erred in

      denying her motion to dismiss the instant CHINS case.


                          FACTS AND PROCEDURAL HISTORY
[4]   Mother and R.L. (Father) 1 are the parents of a daughter, J.L., born early in

      2017. Shortly after J.L.’s birth, Mother became pregnant with Child. Father is

      also father to Child. On a date which is unclear from the record, J.L. was

      removed from the care of Mother and Father in 2017 when DCS initiated a

      CHINS proceeding based on allegations of neglect (the J.L. CHINS). Child

      was born on November 2, 2017.


[5]   On November 7, 2017, DCS filed a petition alleging that Child was a CHINS

      (the 2017 CHINS) based on allegations that, among other things, Mother and




      1
          Father is not a party in the instant appeal.


      Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019         Page 2 of 14
      Father had failed to provide a safe home, had not completed services referred in

      the still-ongoing J.L. CHINS proceeding to rectify conditions for removal,

      Mother was unable and unwilling to care for Child, Mother struggled with

      anger issues, service providers had not recommended unsupervised parenting

      time, and Father had not demonstrated the ability to safeguard Child while

      Child was in Mother’s care. Child was removed from Mother and Father’s care

      and placed with the same foster family caring for J.L. On January 26, 2018, the

      juvenile court held a fact-finding hearing on the 2017 CHINS. On March 2,

      2018, the juvenile court denied the 2017 CHINS, finding that DCS had made

      no referrals for Mother in the 2017 CHINS, DCS had failed to establish the

      foundation for evidence of any prior referrals in other CHINS proceedings

      involving Mother, and that Mother had a stable home, knew about community

      resources available to her, and had strengthened her parenting skills. The

      juvenile court dismissed the 2017 CHINS.


[6]   The juvenile court’s order denying and dismissing the 2017 CHINS was entered

      and served on the parties at 8:33 a.m. on March 2, 2018. It is unclear from the

      record before us whether that order was the subject of an administrative hearing

      with the parties present. Without informing Mother that the 2017 CHINS had

      been denied and dismissed, sometime prior to 2:00 p.m. on March 2, 2018, the

      family case manager for Child, Britney Whittaker (FCM Whittaker), contacted

      Mother by telephone and asked to inspect Mother’s residence. FCM Whittaker

      also acted as case manager for the J.L. CHINS. Mother denied FCM




      Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019       Page 3 of 14
      Whittaker’s request to inspect the residence and admitted that the home was

      not safe for a baby due to having condition issues.


[7]   On March 2, 2018, at 2:00 p.m., FCM Whittaker “detained” Child, even

      though Child had never left the physical custody of his foster family after the

      juvenile court denied the 2017 CHINS. (Appellant’s App. Vol. II, p. 50). After

      being detained on March 2, 2018, Child remained in the custody of his foster

      family. On March 6, 2018, FCM Whittaker filed a report of preliminary

      inquiry and investigation (the 2018 Preliminary Inquiry) in which she stated

      that on


              3/2/2018, FCM Whittaker contacted [Mother] in order to
              complete a home visit and assess the living conditions. [Mother]
              stated that her apartment had dry wall issues, water leaking, and
              that she was waiting to be switched to another apartment until
              [sic] but did not know when this would occur. [Mother] stated
              her home was not safe for a baby. [Mother] refused to allow
              FCM Whittaker to come to the home.


      (Appellant’s App. Vol. II, p. 52). In the 2018 Preliminary Inquiry, FCM

      Whittaker also provided a history of the course of proceedings in both the J.L.

      CHINS proceedings and the 2017 CHINS, made averments concerning

      Mother’s alleged lack of progress in services referred in those matters as well as

      Mother’s poor parenting skills, Mother’s mental health diagnoses which she

      was allegedly not addressing, and unaddressed domestic violence between

      Mother and Father. The preliminary inquiry also contained the March 4, 2018,

      report of Mother’s home-based therapist stating that Mother had refused to


      Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019         Page 4 of 14
      purchase more formula on February 8, 2018, for a supervised visit because she

      felt that she should not be required to provide for Child if Child was not in her

      care. The home-based therapist also related that Mother had been threatened

      with eviction in February 2018. According to the therapist, Mother later

      reported that she would not be evicted if she paid a late fee with her March

      2018 rent. It was unclear to the home-based therapist whether Mother had

      made those payments. Mother had also reported on February 28, 2018, that the

      bathroom ceiling had caved in earlier in the month and had not been fixed; that

      she had not cleaned up the mess; that the apartment was not safe; and that she

      wanted to move.


[8]   On March 6, 2018, the juvenile court found that probable cause existed that

      Child was a CHINS and authorized the filing of a second CHINS petition (the

      2018 CHINS). The 2018 CHINS petition contained allegations that Mother

      had failed to provide Child with safe and stable housing, struggled with

      diagnosed but unaddressed mental health issues that hindered her ability to care

      for Child, had not completed services in the J.L. CHINS proceeding, lacked

      basic parenting skills such as preparing formula and changing diapers,

      experienced domestic violence, no service provider had recommended

      unsupervised parenting time, and other allegations pertaining to Father. DCS

      also alleged that Mother reported to FCM Whittaker on March 2, 2018, that

      her home was not suitable for a baby due to condition issues and that Mother

      had refused to allow an inspection of the home.




      Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019         Page 5 of 14
[9]    On March 13, 2018, Mother moved the juvenile court to dismiss the 2018

       CHINS on the grounds of res judicata, arguing that all of the matters alleged in

       the petition had already been litigated and decided against DCS in the 2017

       CHINS. Mother further argued that on March 1, 2018, after the 2017 CHINS

       had been dismissed by the juvenile court, FCM Whittaker improperly withheld

       Child from her custody and that FCM Whittaker had no legal authority to

       complete a home visit or assess living conditions in her home on that day. On

       March 16, 2018, the juvenile court denied Mother’s motion to dismiss, noting

       in its written order that service of the order denying the 2017 CHINS occurred

       on March 2, 2018, around 8:33 a.m.


[10]   On May 1, 2018, and August 24, 2018, the juvenile court held fact-finding

       hearings on the 2018 CHINS petition. At these hearings, Mother’s counsel

       objected to the admission of evidence regarding matters that preceded the filing

       of the 2018 CHINS based on the same arguments presented in Mother’s motion

       to dismiss. On October 12, 2018, the juvenile court granted the 2018 CHINS

       petition. Regarding the procedural history of the case, the juvenile court found,

       in relevant part, as follows:


               10. On 3/2/18, DCS [FCM Whittaker] contacted Mother
               regarding the return of the minor child to her care, pursuant to
               administrative ruling issued 3/2/18 regarding [the court’s] order
               finding minor child, above, was not a child in need of services.


       (Appellant’s App. Vol. II, p. 174). The juvenile court found that Mother had

       been referred to services to work on many issues including parenting skills,


       Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019            Page 6 of 14
       domestic violence, budgeting, and housing, but had been inconsistent and

       insufficiently engaged; Mother completed a psychological evaluation in 2017

       which resulted in diagnoses including not-specified schizophrenia with

       symptoms of psychosis and PTSD which she was not treating adequately and

       which impaired her ability to parent; home-based therapy over the span of a

       year had not benefitted Mother, who persisted in her inability to understand

       and meet Child’s needs; and that Mother’s relationship with Father was

       plagued with domestic violence and had been through the life of the case.


[11]   Mother now appeals. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
                                              I. Standard of Review

[12]   Mother contends that her procedural due process rights were violated when the

       juvenile court “allowed DCS to proceed with a CHINS action that [Mother]

       had already faced and been vindicated on.” (Appellant’s Br. p. 6). However,

       Mother did not raise this constitutional challenge in her written motion to

       dismiss or during argument on her motion. Even arguments based on

       constitutional challenges are waived if raised for the first time on appeal.

       McBride v. Monroe Cty. Office of Family and Children, 798 N.E.2d 185, 194 (Ind.

       Ct. App. 2003). We conclude that Mother waived her procedural due process

       claim.


[13]   Even though she waived her constitutional claim, the gravamen of Mother’s

       argument is that, pursuant to the doctrine of res judicata, the juvenile court

       Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019           Page 7 of 14
       should have dismissed the 2018 CHINS. Mother raised and preserved this

       issue. Although she did not frame it as such, such motions are properly made

       pursuant to Trial Rule 12(B)(6). See, e.g., Freels v. Koches, 94 N.E.3d 339, 342

       (Ind. Ct. App. 2018) (affirming the dismissal of a complaint on the basis of res

       judicata where defendant moved for dismissal pursuant to Indiana Trial Rule

       12(B)(6)). If a party asserting a 12(B)(6) defense presents matters outside the

       pleadings which are not excluded by the trial court, “the motion shall be treated

       as one for summary judgment and disposed of as provided in Rule 56.” Ind.

       Trial Rule 12(B). Here, Mother incorporated into her dismissal motion the

       juvenile court’s order denying the 2017 CHINS and the 2018 CHINS

       Preliminary Inquiry, and therefore we will treat her motion as having been one

       for summary judgment. Id. Summary judgment is appropriate if the designated

       evidence “shows that there is no genuine issue as to any material fact and that

       the moving party is entitled to judgment as a matter of law.” Ind. Trial Rule

       56(C). We review both the grant or denial of summary judgment de novo and

       apply the same standard as the trial court. Kerr v. City of South Bend, 48 N.E.3d

       348, 352 (Ind. Ct. App. 2015). “All disputed facts and doubts as to the

       existence of material facts must be resolved in favor of the non-moving party.”

       Id.


                                                  II. Res Judicata

[14]   “Res judicata serves to prevent repetitious litigation of disputes that are

       essentially the same.” Earl v. State Farm Mut. Auto. Ins. Co., 91 N.E.3d 1066,

       1074 n. 5 (Ind. Ct. App. 2018), trans. denied. The doctrine of res judicata

       Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019              Page 8 of 14
       encompasses the principles of issue preclusion and claim preclusion. Freels, 94

       N.E.3d at 342. Mother argues that claim preclusion barred the 2018 CHINS.

       Claim preclusion applies when a final judgment on the merits has been entered

       and acts as a complete bar to subsequent litigation on the same claim between

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


                When claim preclusion applies, all matters that were or might
                have been litigated are deemed conclusively decided by the
                judgment in the prior action. Claim preclusion applies when the
                following four factors are present: (1) the former judgment was
                rendered by a court of competent jurisdiction; (2) the former
                judgment was rendered on the merits; (3) the matter now at issue
                was, or could have been, determined in the prior action; and (4)
                the controversy adjudicated in the former action was between
                parties to the present suit or their privies.


       Id. (quotation omitted). DCS does not dispute that the juvenile court had

       proper jurisdiction over the 2017 CHINS, the 2017 CHINS was rendered on the

       merits, or that the identity of the parties in both proceedings was the same.

       Rather, DCS contends that res judicata did not bar the 2018 CHINS because

       “the matter at issue here was not, or could not have been, previously litigated.” 2

       (Appellants’ Br. p. 13).


[15]   Our examination of the matters contained in the 2017 CHINS petition, the

       juvenile court’s order denying the 2017 CHINS, the 2018 Preliminary Inquiry,



       2
         DCS notes that the juvenile court did not specify in its order denying the 2017 CHINS “whether the
       dismissal was with or without prejudice.” (Appellees’ Br. p. 6). Unless a trial court specifies otherwise, a
       dismissal is with prejudice. Trial Rule 41(B).

       Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019                                   Page 9 of 14
       and the 2018 CHINS petition leads us to conclude that a number of the issues

       litigated by DCS in the 2018 CHINS were, or could have been, litigated in the

       2017 CHINS. 3 Indeed, the allegation that Mother was currently involved in the

       J.L. CHINS and the allegation that services had not been completed in that

       case contained in the 2017 CHINS were simply duplicated in the 2018 CHINS.


[16]   Other matters alleged in the 2018 CHINS could have been determined in 2017

       CHINS proceeding but were not. For example, Mother completed a

       psychological evaluation in February of 2017 and was diagnosed with

       schizophrenia with symptoms of psychosis and PTSD, among other conditions.

       Despite these diagnoses being known, DCS made no allegations in the 2017

       CHINS petition, filed on November 7, 2017, based specifically on Mother’s

       psychological evaluation or her failure to follow any concomitant care

       recommendations. Likewise, the juvenile court’s order denying the 2017

       CHINS made no findings or conclusions specifically based on Mother’s mental

       health diagnoses and treatment plan. However, in its 2018 CHINS petition,

       filed four days after the juvenile court entered its order denying the previous

       petition, DCS alleged that “Mother completed a psychological evaluation but

       has not followed through with her mental health treatment, and she admitted

       not taking her medication.” (Appellant’s App. Vol. II, pp. 72-73). There is

       nothing in the record to indicate that this allegation was based on new




       3
         The chronological case summary and transcript of the 2017 CHINS fact-findings hearings are not part of
       the record on appeal.

       Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019                             Page 10 of 14
       information that was not known to DCS at the time it filed the 2017 CHINS.

       DCS argues that evidence at the August 2018 fact-finding hearing on the 2018

       CHINS indicated that Mother had not seen her therapist since May 2018, had

       not seen her doctor since June 2018, and that Mother was not taking her

       medication. However, this information was not before the juvenile court at the

       time that it decided Mother’s dismissal motion, as there was nothing in the

       2018 Preliminary Inquiry which supported these allegations.


[17]   An examination of the litigation of the issue of Mother’s ability and willingness

       to parent yields a similar result. The 2017 CHINS petition alleged that Mother

       “has not successfully demonstrated an ability and willingness to appropriately

       care for [Child][.]” (Appellant’s App. Vol. II, p. 38). After fact-finding had

       occurred, the juvenile court concluded in denying the 2017 CHINS that it was

       “uncontroverted that Mother has a stable home, that she knows of local

       community-based resources that are easily accessible to her, and that [M]other’s

       parenting skills have improved.” Yet, four days after the entry of this finding,

       DCS alleged in the 2018 CHINS that, “[d]espite the therapist involved teaching

       parenting skills for a year, [Mother] still struggles with basic care of infants,

       which includes not knowing how much formula to feed them and not being

       willing to change their diapers.” (Appellant’s App. Vol. II, p. 73). Again,

       although the 2018 Preliminary Inquiry contained a report by the home-based

       therapist dated March 4, 2018, to this effect, there is nothing in that report that

       indicates that these were conditions which had changed since the filing of the

       2017 CHINS or even the last fact-finding in that matter.


       Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019           Page 11 of 14
[18]   Similarly, the 2018 CHINS alleged that Mother and Father “have a very

       aggressive relationship, and [Mother] has reported in the past that [Father] hit

       her.” (Appellant’s App. Vol. II, p. 73). This was an issue which was known to

       DCS at the time of the filing of the 2017 CHINS, could have been litigated in

       those proceedings, but apparently was not, as the trial court made no findings in

       its denial order regarding the issue. There is nothing in the record before us

       indicating that any new acts of domestic violence had occurred between Mother

       and Father that were unknown to DCS at the time of the 2017 CHINS litigation

       or that had occurred since the last fact-finding hearing in that matter on January

       26, 2018.


[19]   The issues of Mother’s compliance with services in J.L.’s CHINS, her mental

       health, her parenting abilities, and domestic violence were either already

       litigated or were known to DCS at the time that it filed and litigated its 2017

       CHINS, and thus, re-litigation of those issues was barred by res judicata. See

       M.G., 74 N.E.3d at 264. In reaching our conclusion, we are cognizant of the

       fact that circumstances change as CHINS proceedings unfold and that the

       purpose of the CHINS statute is to protect children. We do not intend to

       downplay the seriousness of the allegations contained in the 2018 CHINS.

       However, parents have a right to be free of vexatious and repetitious litigation,

       and we are concerned with the manner in which DCS litigated this case.


[20]   In its order granting the 2018 CHINS, the juvenile court made findings

       regarding issues which we have determined should have been dismissed. For

       example, the juvenile court entered at least ten findings regarding the results of

       Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019         Page 12 of 14
Mother’s mental health evaluation based on information known to DCS at the

time it filed its 2017 CHINS, and it found the domestic violence between

Mother and Father to have occurred “‘through the lifespan of this case.’”

(Appellant’s App. Vol. II, p. 180) (quote not attributed in the original).

However, in the 2018 CHINS, DCS did allege a new circumstance supporting

its allegation that Mother had failed to supply Child with a safe and stable

home based upon Mother’s report to FCM Whittaker on March 2, 2018, that

her home was unfit for a baby. Mother argues that, because the juvenile court

had already denied the 2017 CHINS when FCM Whittaker requested a home

visit and no report of abuse or neglect had been initiated by an outside party,

FCM Whittaker had no authority to investigate Mother. Although we are

troubled by the timing of FCM Whittaker’s call to Mother and subsequent

detention of Child, FCM Whittaker was still acting as case manager in the J.L.

CHINS at the time she made her request to Mother. 4 Contrary to Mother’s

assertions, nothing in the CHINS statute requires that a so-called “310” report,

which is a third-party report of abuse or neglect of a child, is necessary to

remove a child. Indeed, a caseworker is authorized to take a child into custody

if the caseworker has probable cause to believe the child is a CHINS, without

reference to a third-party report. See I.C. § 31-34-2-3.




4
  We find no support in the record for the juvenile court’s conclusion in its order granting the 2018 CHINS
that FCM Whittaker “contacted Mother regarding the return of the minor child to her care, pursuant to [the]
administrative ruling issued 3/2/18 regarding [the court’s] order finding minor child, above, was not a child
in need of services.” (Appellant’s App. Vol. II, p. 174).

Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019                                Page 13 of 14
[21]   There was also information in the 2018 Preliminary Inquiry regarding Mother

       failing to provide formula for Child on February 8, 2018, and reports taken on

       February 26 and 28, 2018, regarding Mother’s housing instability which

       supported DCS’s allegations in its 2018 CHINS petition that Mother had not

       provided a stable, safe home and still struggled with basic infant care.

       Inasmuch as these facts occurred after the last fact-finding hearing in the 2017

       CHINS, they could not have been litigated in the prior proceeding. Therefore,

       we remand with instructions to the juvenile court to reconsider the 2018

       CHINS as to Mother without reliance on issues that were already litigated or

       could have been litigated at the time of the 2017 CHINS.


                                              CONCLUSION
[22]   Based on the foregoing, we conclude that the juvenile court erred when it failed

       to dismiss those claims made by DCS in its 2018 CHINS petition which had

       already been litigated or which could have been litigated in the 2017 CHINS.


[23]   Reversed and remanded for proceedings consistent with this opinion.


[24]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Opinion 18A-JC-2927 | May 29, 2019           Page 14 of 14
