In the Matter of R.L. (Minor Child)
Indiana Department of Child Services, Appellee-Petitioner, and J. R. (Mother), Appellant-Respondent, and Child Advocates, Inc., Guardian Ad Litem.
from the Marion Superior Court The Honorable Marilyn Moores,
Judge The Honorable Gael Deppert, Magistrate Trial Court
Cause No. 49D09-1803-JC-638
Attorney for Appellant Andrew Bernlohr Indianapolis, Indiana.
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Aaron T. Craft Deputy Attorney General
OPINION ON REHEARING
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.
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 interests at stake
and the heightened due process provided in CHINS proceedings,
the court concluded that application of the doctrine of
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.
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.
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.
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.
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 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.
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