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In re Eq.W.

Court of Appeals of Indiana

July 6, 2018

In the Matter of: Eq.W., M.W., A.W., S.W., & Ez.W.,
v.
Indiana Department of Child Services, Appellee-Petitioner

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

          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

          BAKER, JUDGE.

         [¶1] V.B. (Mother) appeals the trial court's order finding her five minor children to be children in need of services (CHINS). She argues that she was denied procedural due process and that the evidence is insufficient to support the CHINS adjudication. Although we have significant concerns about the way in which the Department of Child Services (DCS) litigated this case, we find that Mother has waived some of her arguments and that the others do not amount to due process violations. We also find the evidence sufficient. Therefore, we affirm.

         Facts

         [¶2] In June 2017, the children were removed from Mother's care and custody and DCS filed a petition alleging that the children were CHINS. DCS alleged that Mother was under the influence of drugs while parenting the children. A factfinding hearing began on September 12, 2017, at which time DCS was unable to provide testimony regarding Mother's drug screens because of an improper request for telephonic testimony. DCS requested a continuance, which was granted. The factfinding hearing continued on October 25, 2017. DCS presented no new evidence. The trial court denied and dismissed the CHINS petition for lack of sufficient evidence on November 7, 2017.

         [¶3] On November 8, 2017, DCS filed a new petition alleging that the children are CHINS.[1] The new petition was based on positive drug screens, the erratic behavior of the children's father at a child and family team meeting, and the parents' struggle to pay their utility bills. The factfinding hearing took place on December 19, 2017. At this hearing, DCS presented the following evidence supporting its petition:

• Two of the children testified about sometimes being hungry, suspecting that their parents were using drugs, having a dirty and cluttered home, and their parents' lacking attempts to homeschool them.
• The children's paternal grandmother (and relative placement) testified about general concerns regarding the children's lack of consistent and structured education, the uncleanliness of the parents' home, the parents' financial struggles, and the parents' past struggles with drug use.
• With respect to the children's education, the parents do not trust public schools and have ostensibly been homeschooling the children. But the homeschooling was inconsistent and ineffective. For example, when paternal grandmother enrolled the children in public school, the nine-year-old did not know the alphabet and was unable to write his name.
• The children's maternal grandmother testified about general concerns regarding the uncleanliness of the parents' home and the parents' financial struggles.
• The Family Case Manager (FCM) testified regarding concerns about the cleanliness of the home, the parents' financial struggles, and the lack of a consistent and structured education for the children.

         DCS offered no evidence that parents had provided any positive drug screens. Following the presentation of the evidence, counsel for Mother raised the following argument:

These kids have been detained since, um, I think the end of June. The end of June the children were removed and the parents requested a contested fact-finding hearing. They didn't get it until September, um, 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. Um, they 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, um, in the time since they have [sic] lost their initial petition. And so parents requested another contested fact-finding and we came here today and are supposed to be hearing that new evidence of, um, what circumstances have changed since we were here in September and DCS failed to prove their case the first time. Um, I [don't] think we've heard any new information. . . .

Tr. Vol. II p. 71-72.

         [¶4] On January 3, 2018, the trial court issued an order finding the children to be CHINS. The CHINS finding is primarily based on the cluttered and unclean state of the home and the condition of the home environment in general; the lack of a consistent and structured educational program for the ...


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