COA rejects father’s argument that his kids should be CHINS

Although a Tippecanoe County father appealed the denial of a petition alleging his children were children in need of services, the Indiana Court of Appeals has ruled the father’s arguments as to why his children should be considered CHINS were unavailing.

After receiving a report about J.S.’s violence against S.S., the mother of his children, the Tippecanoe Superior Court adjudicated the couple’s children, L.S., C.S. and W.S., as children in need of services in 2014. The CHINS case was closed, and the parents continued marital counseling and medication for L.S., who was diagnosed with a mood disorder and ADD.

Then in 2016, law enforcement officers responded to a report of domestic violence at the couple’s home in the presence of the children, and J.S. admitted to hitting L.S. with a belt and a suitcase. The Department of Child Services then filed a petition alleging the children were CHINS, and the trial court issued a protection order prohibiting J.S. from contacting S.S. or the children.

However, the court denied the CHINS petition because S.S. filed for divorce. The dissolution proceeding, coupled with the protection order, allowed S.S. to continue providing the appropriate care for the children, the court said.

J.S. appealed, arguing first that the trial court erred by denying his repeated requests to exercise supervised visitation with the children. During the CHINS proceedings, J.S. alleged that without an adjudication, he would be unable to gain access to his children.

But Indiana Court of Appeals Judge Edward Najam, writing in a Friday opinion, said that issue was moot because during the CHINS proceedings, the trial court referred “(m)atters of custody, parenting time, and support” to the dissolution court. During the ensuing dissolution proceedings, the parents agreed to a plan to allow J.S. to see his children, so the issue was no longer live, Najam said.

J.S. also argued he was denied due process when the final fact-finding order was not entered until 159 days after the filing of the CHINS petition and when he was given only 12 minutes to present evidence at the final hearing. But Najam noted the first day of the fact-finding hearing was held within the 60-day statutory timeframe, and J.S.’s counsel did not object to the later date set for the continuation of the hearing. Further, J.S. was able to examine and cross-examine multiple witnesses over the course of three days, so he also failed to prove a due process violation in that regard, the judge said.

Finally, because S.S. testified she intends to continue pursuing the divorce, and because the protection order remains in place, there is no evidence J.S. presents an ongoing danger to her or the children, the court said. Thus, the trial court did not err in denying the CHINS petition.
The case is In the Matter of: L.S., C.S., and W.S. (Minor Children in Need of Services); J.S. v. Indiana Department of Child Services, 79A02-1705-JC-1042.