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In re Eq.W.

Supreme Court of Indiana

June 27, 2019

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

          Appeal 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

          On Petition to Transfer from the Indiana Court of Appeals No. 18A-JC-555

          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



         This 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.

         In this 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 adjudicated CHINS.

         The 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.

         Facts and Procedural History

         Mother (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 grandmother.

         DCS filed a petition alleging the Children were CHINS on June 29, 2017 (hereinafter "first petition").[1] In primary support of its petition, DCS alleged the following material facts:

• 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.

         At a 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 evidence.

         On 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.)

         On 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 facts:

• 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 services.

• 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 pregnancy.

• 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.

         In 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 children.[2]

         At 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.

         On 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 exc[]essive 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.

         In a 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 ...

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