2nd CHINS finding upheld, but contempt ruling against father reversed

IL file photo

A CHINS adjudication was not erroneous, the Court of Appeals of Indiana has ruled, but a contempt finding against a father was.

Mother C.E. and father S.E. have one child together, N.E. Both parents have several other children and have a history of hostility toward the Indiana Department of Child Services.

In October 2021, DCS filed a petition alleging that N.E. was a child in need of services. That first petition alleged the parents were involved in an “argument and/or domestic violence incident” while N.E. was in C.E.’s arms.

N.E. was left in the care of a neighbor while the parents allegedly went to the hospital. When a stranger arrived at the neighbor’s house to take N.E., the neighbor contacted law enforcement.

Law enforcement discovered the parents’ residence did not have functioning toilets, electricity or water and was extremely cluttered. DCS was unable to locate the parents and thereafter removed N.E.

Shortly after N.E was removed from the parents’ care, DCS removed another child, as well. The trial court adjudicated both children as CHINS in December 2021 and issued a dispositional order in January 2022.

The parents appealed that determination, during the pendency of which they did not comply with court-ordered services and did not visit N.E. until April 2022. Even after they began participating in supervised visits, they were inconsistent.

On one occasion, S.E. brought a large hunting knife and a set of nunchucks to a visit. On another occasion, the parents argued during the visit, which upset the children.

Eventually, multiple supervised visitation providers refused to work with the parents any further. The parents also refused to participate in other services offered by DCS.

In May 2022, C.E. filed a petition for dissolution of marriage and a petition for a protection order, the latter of which was granted.

Shortly after, C.E. was charged with battery, domestic battery and residential entry after she entered S.E.’s residence and battered him and two others. The trial court issued a no-contact order.

In June 2022, C.E. requested that the dissolution petition and protection order be dismissed. She claimed that the petition and protection order were being used in juvenile court against her and were complicating their day-to-day lives.

The trial court dismissed the petition and protection order.

In October 2022, the appellate court reversed the first CHINS determination in In re N.E., 198 N.E.3d 384 (Ind. Ct. App. 2022).

Instead of seeking a rehearing or transfer, DCS filed a second CHINS petition in December 2022. That petition contained numerous allegations relating to the parents’ failure to visit N.E., domestic violence and general failure to comply with court orders in the CHINS cases of their other children.

The parents denied the allegations.

C.E. filed a motion to dismiss the second petition and argued that it was barred under the claim preclusion branch of the doctrine of res judicata. The Vigo Circuit Court denied her motion to dismiss.

In January 2023, the parents were evicted from their residence.

The same month, the trial court conducted a factfinding hearing. It also ordered the parents to participate in a hair and nail follicle drug test and alcohol test.

The court ultimately issued another order finding N.E. was a CHINS. It also again ordered the parents to submit to a hair follicle test.

At the dispositional hearing, the court-appointed special advocate testified that N.E. had a mass on her back that had doubled in size during the fall of 2022.

On May 10, 2023, the trial court conducted a review hearing and a hearing regarding N.E.’s medical issue. The parents did not attend the hearing, but their counsel was present.

Meanwhile, DCS reported that the parents failed to submit a hair follicle test and requested that the court find them in contempt of court.

The trial court set a contempt hearing and sent another referral for a hair follicle test. The parents failed to complete the hair follicle test and did not appear for the hearing because they claimed the C.E. was in the emergency room.

In June 2023, the parents and their counsel appeared for a show-cause hearing, at which DCS reported that it still had not received any hair follicle tests from the parents. The parents testified that they had gone to the testing facility, but the referral had expired.

The trial court found the parents in contempt of court for failing to appear at the May 10 hearing and violating the court orders instructing them to take hair follicle drug screens.

The parents appealed, first arguing that the second CHINS petition was barred by res judicata.

The Court of Appeals disagreed.

“Mother failed to demonstrate that the matters now at issue in the Second Petition were or might have been determined in the First Petition. We, thus, conclude that the trial court properly denied Mother’s motion to dismiss on grounds of res judicata,” Judge Elizabeth Tavitas wrote.

The second issue on appeal was whether C.E.’s due process rights were violated by DCS’s failure to perform a second investigation before filing the second CHINS petition. Again, the appellate court disagreed, this time pointing to Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893 (1976).

“Given the evidence presented at the fact-finding hearings, even if DCS had utilized the Form 310/311 procedures and Mother had been able to administratively appeal a substantiation of neglect or abuse, her administrative appeal would likely have been unsuccessful,” Tavitas wrote. “Under these circumstances, a balancing of the three Mathews factors reveals no due process violation.”

Further, the trial court did not err in the admission of evidence, the COA ruled, nor did it err in granting the second petition based on the evidence.

Lastly, the appellate court addressed whether the trial court erred by finding S.E. in contempt.

“Although Father was given the opportunity to purge himself of contempt, the procedure used by the trial court did not comply with the statutory requirements,” Tavitas wrote. “Further, the trial court abused its discretion by considering evidence obtained by the court reporter. Accordingly, we conclude that the trial court erred by finding Father in contempt.”

Judges Rudolph Pyle and Peter Foley concurred in In the Matter of N.E., Minor Child Alleged to be a Child in Need of Services; C.E. (Mother) and S.E. (Father) v. Indiana Department of Child Services, 23A-JC-996.