Justices grapple with refiling of similar CHINS case

As Indiana’s executive and legislative branches work to implement reforms in the Department of Child Services and boost funding, the judicial branch is also reviewing the department in a case that could decide whether child welfare cases are subject to res judicata.

The Indiana Supreme Court on Thursday heard oral argument in Matter of Eq.W., et al., 18S-JC-00603, a Monroe County children in need of services case. At issue is the trial court’s finding that mother V.B.’s five children were CHINS, a ruling the Indiana Court of Appeals begrudgingly upheld.

In its July 2018 opinion, the Indiana Court of Appeals sharply criticized DCS for engaging in “piecemeal litigation.” The department’s initial CHINS petition was dismissed on Nov. 7, 2017, but the next day DCS filed a second petition that led to the CHINS adjudication.

While the first CHINS petition focused on the parents’ alleged substance use, the second claimed the family home was filthy and the children were suffering educational neglect because of the parents’ homeschooling. One of the children, who was 9 years old at the time of the CHINS proceeding, could not yet write his name, a fact DCS said was evidence that the parents were not regularly providing their children with schooling.

On appeal, V.B.’s counsel, Kyle Dugger, argued the mother’s due process rights were violated when DCS was allowed to file a second petition “based on substantially similar allegations that were found insufficient the first time.” Though the Court of Appeals ultimately found V.B.’s due process and res judicata arguments waived, it nevertheless cautioned DCS against the litigation tactics it used in the instant case.

“While we are unable to grant relief to Mother on this argument, in no way do we intend to condone the way in which DCS litigated this case,” Judge John Baker wrote in the July COA opinion. “Why it was able to gather this evidence the second time but not the first is not wholly clear, but we explicitly discourage DCS from adopting this process on a regular basis.”

The Supreme Court likewise expressed similar concerns during Thursday’s oral argument, asking Katherine Cornelius, counsel for DCS, what new information became available to DCS after the first CHINS petition that would allow the second petition to overcome res judicata. Chief Justice Loretta Rush, herself a former juvenile court judge in Tippecanoe County, noted the children’s educational neglect had been going on for a while at the time of the second petition, yet that issue was not referenced in the first round of proceedings.

But Cornelius said the new information was the fact that the issues with the family were still ongoing. Further, the parents had stopped cooperating with DCS and allowing caseworkers into the home.

“Welfare cases are forever changing,” Cornelius told the court. “Every day is a new day for the children.”

The crux of DCS’ argument, Cornelius said, is that res judicata should not apply in child welfare cases, or at least should not apply in this case. Requiring DCS to conduct investigations that are thorough enough to uncover every potential family issue would be too high of a bar for the department to meet, she said, noting DCS does not have law enforcement resources to assist with its investigations.

But Dugger, still representing V.B. before the Supreme Court, asked for the opposite: a ruling that explicitly says res judicata applies to DCS in CHINS cases. However, the justices seemed to struggle with whether Dugger’s argument was waived, with Justice Geoffrey Slaughter noting the first petition was dismissed without prejudice, meaning a final judgment had not been entered.

Slaughter suggested that Dugger should have appealed the fact that the petition was dismissed without prejudice, but Dugger maintained his argument was still preserved for appeal because he had put the trial court on notice of res judicata issues. Specifically, Dugger said the court was aware that res judicata was an issue during a detention hearing and during his closing argument when he said he raised concerns about the lack of new evidence.

Dugger’s statements during closing arguments should be construed as a motion to dismiss under res judicata, Dugger said. Slaughter, however, questioned whether any error in the trial court’s dismissal without prejudice was invited by Dugger.

Addressing some of the overarching issues surrounding DCS, both Rush and Justice Mark Massa noted that on several occasions in the last year DCS has been criticized for so-called “piecemeal litigation.” The justices asked Cornelius how they could be sure this case would end that practice once and for all.

While she acknowledged that DCS does make mistakes sometimes in its litigation, Cornelius said the already overworked department has no interest in “sandbagging” its cases in an effort to take multiple bites at the apple. What’s more, courts likewise have no interest in allowing CHINS cases to proceed without sufficient evidence.The full oral argument can be viewed here.