Supreme Court rejects DCS ‘piecemeal litigation’ in CHINS cases

In response to the question of whether the Department of Child Services can file successive CHINS petitions based on evidence available at the time of the original petition — a practice that has drawn ire from the Indiana Court of Appeals — the Indiana Supreme Court has ruled that such a practice is barred. However, the specifics of the case the court addressed Thursday did not require reversal on res judicata grounds.

In In the Matter of Eq.W., M.W., A.W., S.W., and Ez.W. (Minor Children); V.B. (Mother) v. Indiana Department of Child Services, 18S-JC-603,
mother V.B. and father L.S.’s five children, Eq.W., M.W., A.W., S.W. and Ez.W., were adjudicated as children in need of services in January 2018. The Monroe Circuit Court had initially considered a CHINS petition in 2017, when DCS reported the parents had cared for the children while impaired, two of the children were not wearing shoes at a public mall and V.B. was found with a hatchet in her diaper bag, all during one incident in June 2017, among other issues.

However, the trial court did not grant the CHINS petition on these grounds, noting a drug screen had not been requested after both parents were arrested in June 2017, and DCS did not offer the results of a later drug screen as evidence. Thus, the original CHINS petition was dismissed without prejudice on Nov. 7, 2017.

The next day, DCS filed a second CHINS petition, asserting that the parents had prior involvement with DCS, that both had tested position for methamphetamine and that the family’s electricity and water were shut off. DCS also said it had obtained additional evidence of neglect since the first petition was dismissed.

It was based on this evidence that the trial court issued the CHINS adjudication in 2018. V.B. appealed and the Indiana Court of Appeals affirmed, though Judge John Baker wrote to express concerns that the way DCS litigated the case “allows DCS ‘to take multiple bites at the apple by litigating piecemeal … .’”

If “DCS had simply put in a better effort during the first CHINS case,” Baker wrote in July 2018, “this problem would not have arisen at all.” Even so, the COA determined V.B. had waived her res judicata argument.

The case went before the Indiana Supreme Court in January 2019. Justice Steven David handed down the court’s opinion on Thursday, holding that claim preclusion res judicata applies to CHINS proceedings.

Calling the procedure of reviewing parents’ past acts in a CHINS proceeding “ripe for abuse,” David said the second CHINS petition in this case was filed based on “no additional allegations that would have occurred after the October 25, 2017, fact-finding hearing on the first petition.”

“To us, this case screams out as an obvious ‘second bite at the apple,’” David wrote. “The fact of the matter is that DCS failed to present sufficient evidence to meet its burden of proof on the first go-round. While the record is unclear as to why the trial court allowed the second petition to be filed, the court specifically denied Mother’s request for dismissal with prejudice and noted that the allegations of the first petition could be combined with future allegations as evidence of the need for coercive court intervention.”

“…While we understand the pressures placed on DCS to protect the safety and well-being of children in our state, we can in no way endorse the procedural tactics employed in this case to essentially string out the CHINS proceeding until enough evidence was collected, all the while keeping the children separate from their parents,” he wrote. “There is simply too much at stake to condone these actions.”

But, David continued, even if claim preclusion bars a successive CHINS petition at some point, it does not bar it forever. “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 took place after the dismissal of the prior proceeding,” he said, “the State may file a new CHINS petition.”

However, the high court, like the COA, declined to reverse the CHINS adjudication in this case because V.B. did not move to dismiss on res judicata grounds in the trial court. The justices declined to accept her argument that trial courts must sua sponte dismiss a CHINS petition if it believes a new filing is claim-precluded.

Similarly, the court held that the trial court did not commit fundamental error by failing to address the issue of res judicata.

“We expect a lot out of attorneys in our state and hold DCS to the same standard of practice as attorneys in other civil proceedings,” David wrote in conclusion. “We are confident that DCS can do better to protect the integrity of these proceedings and clamp down on repetitious filings, especially when it has the opportunity to present detailed evidence to the trial court and bring about a quick and fair disposition on the first try.”

The justices also summarily affirmed the part of the COA’s opinion finding sufficient evidence to support a CHINS adjudication for each of the five children.

Justice Geoffrey Slaughter concurred in part and in the judgment, but wrote separately to address what he views as “misstatements of governing law.”

Specifically, Slaughter said claim and issue preclusion are not separate branches of the doctrine of res judicata — they are “separate trees.” Further, claim preclusion does not apply in this case because the initial dismissal without prejudice was not a decision on the merits, Slaughter said, adding that the original CHINS petition should have been dismissed with prejudice.

Finally, Slaughter said objecting parties in CHINS cases must assert their res judicata objection as an affirmative defense under Indiana Trial Rule 8(C). In contrast, David wrote that “it does not appear there is a requirement that a parent must file a responsive pleading.”

“Perhaps the Court is correct in implying that Rule 8(C)’s requirements of a responsive pleading do not reflect the reality of CHINS practice on the ground in our trial courts,” Slaughter wrote in an opinion joined by Justice Mark Massa. “But as long as the trial rules apply to all civil suits, we should enforce the rules as written and not sanction the short-cut practices that today’s decision ratifies.”