                                                                               FILED
OPINION ON REHEARING                                                      Aug 29 2019, 8:15 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
                                                           Aaron T. Craft
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of R.L. (Minor                               August 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 on Rehearing 18A-JC-2927 | August 29, 2019                   Page 1 of 5
[1]   We grant DCS’s petition for rehearing to address new guidance issued by our

      supreme court on the application of the doctrine of res judicata to CHINS

      proceedings. After we issued our opinion in this matter, but before the time for

      DCS to seek rehearing or transfer had elapsed, our supreme court issued its

      opinion in Matter of Eq.W., 124 N.E.3d 1201 (Ind. 2019). In Eq.W., DCS

      pursued a CHINS proceeding which the trial court denied on November 7,

      2017. Id. at 1206. The very next day, DCS filed a second CHINS raising only

      issues that had already been litigated in the first CHINS. Id. at 1206-07. The

      trial court granted the second CHINS. Id. at 1207. Eq.W.’s mother appealed,

      claiming that res judicata barred DCS from relitigating the same, or known,

      issues in the second CHINS that DCS had failed to prevail upon in the first

      CHINS. Matter of Eq.W., 106 N.E.3d 536, 539 (Ind. Ct. App. 2018), vacated in

      part, aff’d in part. Another panel of this court affirmed the trial court, finding

      that Eq.W.’s mother had waived her argument by not motioning to dismiss the

      CHINS on grounds of res judicata, but the court strongly condemned the

      manner in which DCS had litigated the case. Id. at 543.


[2]   Our supreme court accepted transfer of the case and found that, indeed,

      Eq.W.’s mother had waived her claim by not raising it to the trial court. Matter

      of Eq.W., 124 N.E.3d at 1212-14. The court also found that the trial court did

      not commit fundamental error by failing to dismiss the CHINS sua sponte. Id. at

      1214-15. However, the court clarified that res judicata, and specifically claim

      preclusion, does apply to CHINS cases. Id. at 1208-11. Noting the grave



      Court of Appeals of Indiana | Opinion on Rehearing 18A-JC-2927 | August 29, 2019   Page 2 of 5
interests at stake and the heightened due process provided in CHINS

proceedings, the court concluded that application of the doctrine of res judicata


        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.


Id. at 1211 (bold original). The supreme court explained that, in order to avoid

the preclusive effects of a prior proceeding, in a subsequent CHINS, DCS must

allege new material facts separate from what was available to them at the fact-

finding hearing in the prior proceeding. Id. at 1212. Agreeing with the State

that past acts by parents can be relevant to a subsequent CHINS and noting that

DCS must necessarily rely on parents’ past actions to fully inform the trial court

about why the CHINS was filed, the court explained the use of evidence of a

parent’s prior actions as follows:


        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 conduct that took place after the dismissal of the prior
        proceeding, the State may file a new CHINS petition.

Court of Appeals of Indiana | Opinion on Rehearing 18A-JC-2927 | August 29, 2019   Page 3 of 5
      Id. (emphasis added). Thus, our supreme court has held that res judicata does

      not bar the filing of a subsequent CHINS as long as DCS raises some new

      allegations, and it appears that evidence of a parent’s prior actions may be used

      to support that new filing.


[3]   In its petition for rehearing, DCS argues that, in light of Eq.W., this court erred

      when it remanded for reconsideration of the 2018 CHINS without reference to

      the 2017 CHINS matters because Eq.W. held that evidence of a parent’s prior

      actions can be presented in a subsequent CHINS as long as DCS presents new

      allegations. DCS essentially argues that, once it filed the 2018 CHINS that

      contained a few new allegations, it was entitled to rely on all allegations and

      evidence of Mother’s prior conduct in proving the new 2018 CHINS.


[4]   This court’s opinion is in accord with Eq.W. in that this court applied the

      doctrine of res judicata to this CHINS proceeding. This court’s implicit

      conclusion that DCS was allowed to file the 2018 CHINS, which this court

      acknowledged contained some new allegations, is also in line with the holding

      of Eq.W. However, 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.


[5]   Mother has not filed a response to DCS’s petition for rehearing, and she has

      never claimed that the issue preclusion branch of res judicata or any other reason

      barred DCS from relitigating specific issues that had been or could have been


      Court of Appeals of Indiana | Opinion on Rehearing 18A-JC-2927 | August 29, 2019   Page 4 of 5
      argued in the 2017 CHINS. The only argument presented by Mother on appeal

      was that claim preclusion barred DCS from bringing the 2018 CHINS, which

      Eq.W. now has definitively settled was not a meritorious argument. Eq.W. did

      not set any limits or provide further guidance on DCS’s ability to rely on a

      parent’s previous conduct when filing a subsequent CHINS. While it is unclear

      whether our supreme court intended by its decision in Eq.W. to allow DCS to

      relitigate in a subsequent CHINS all issues previously raised as long as some

      new allegations are added, Mother has not argued issue preclusion or provided

      us with any other reason that DCS may not do so. Therefore, it seems that this

      is not a fitting case for this court to attempt to probe the boundaries of the use of

      such evidence in light of Eq.W.


[6]   Based on the foregoing, we grant rehearing, affirm the trial court in all respects,

      and clarify that remand is now not necessary in light of the supreme court’s

      holding that DCS may rely on evidence of a parent’s prior conduct in filing a

      subsequent CHINS and in light of the fact that Mother offered only the

      discredited issue of claim preclusion for our consideration on appeal.


[7]   Affirmed.


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




      Court of Appeals of Indiana | Opinion on Rehearing 18A-JC-2927 | August 29, 2019   Page 5 of 5
