In the Matter of Eq.W., M.W., A.W., S.W., and Ez.W. (Minor Children); V. B. (Mother), Appellant,
Indiana Department of Child Services, Appellee.
Argued: January 24, 2019
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
Petition to Transfer from the Indiana Court of Appeals No.
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
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.
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
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.
and Procedural History
(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 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
filed a petition alleging the Children were CHINS on June 29,
2017 (hereinafter "first petition"). In primary
support of its petition, DCS alleged the following material
• 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.
• 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.
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
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.)
November 8, 2017-the day after the dismissal of the first
petition- DCS filed another petition (hereinafter
"second petition") alleging the five Children were
CHINS. The second petition relied on these alleged material
• 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
â¢ 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
• 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.
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
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.
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 excessive
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.
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