S.S. v. Indiana Department of Child Services

— 896 — OPINION VAIDIK, Judge. Case Summary S.S. (“Stepfather”) appeals the juvenile court’s adjudication finding his stepchildren to be children in need of services (CHINS). The Department of Child Services (DCS) filed a petition alleging that Stepfather’s stepchildren were CHINS. The petition named both Stepfather and the children’s mother as parties to the proceeding. Mother admitted to the allegations in DCS’s petition, but Stepfather denied the allegations and requested a factfinding hearing. The juvenile court adjudicated the children CHINS without a hearing and then proceeded to disposition. We conclude that the juvenile court erred by denying Stepfather a factfinding hearing on the CHINS allegations. Although the Indiana Code provides that the court “shall” enter judgment following the admission by a parent, guardian, or custodian to the CHINS petition, Ind.Code § 31-34-10-8(1), the Code also guarantees parents, guardians, and custodians “in proceedings to determine whether a child is a child in need of services” the rights “(1) to cross-examine witnesses; (2) to obtain witnesses or tangible evidence by compulsory process; and (3) to introduce evidence on behalf of the parent, guardian, or custodian,” Ind.Code § 31-32-2-3. We conclude that where, as here, one party admits to CHINS allegations while another denies them, due process entitles the contesting party to a factfinding hearing and adjudication. We reverse and remand. Facts and Procedural History According to allegations in the record, Stepfather was convicted of child molesting and criminal confinement in 1995. He served a term of incarceration but did not complete sex offender treatment. Stepfather married Mother in 2005. Mother has two children, daughter K.D., born June 19, 1992, and son K.S., born April 1,1995. In March 2009, letters from K.D. to her boyfriend surfaced which alleged that Stepfather touched her inappropriately. DCS conducted a preliminary inquiry and entered into an informal adjustment program with Mother and Stepfather. Mother and Stepfather agreed to maintain an appropriate home and participate in counseling. Stepfather further agreed to complete a sex-offender treatment program. Stepfather failed to comply with the requirements of his treatment program, so DCS soon filed a petition alleging that K.D. and K.S. were CHINS. DCS named both Mother and Stepfather as parties. The petition described Stepfather as “Step-Father/Custodian.” Appellant’s App. p. 36. DCS claimed that K.D. and K.S. were CHINS and that coercive intervention was necessary because Stepfather “is an untreated sexual offender and has not yet completed his sex offender treatment, but [Mother] continues to allow him to live in the home.” Id. at 111. The juvenile court convened a hearing on DCS’s petition. Mother and Stepfather appeared and were each represented by separate counsel. Mother admitted to the allegations in DCS’s petition, and the juvenile court pronounced, “I will adjudicate the children to be in need of services.” Tr. p. 2. The court proceeded to disposition for Mother and ordered Mother to continue home-based counseling. Stepfather then indicated to the court that he wished to have a factfinding hearing on the CHINS allegations. The court convened a subsequent hearing, but at the beginning the court stated, “I am noting — 897 — that the status of these children has been previously determined, that being children in need of services by way of mother’s admission to an amended petition.... I am informing the parties that it is the Court’s intent to treat this hearing as a contested dispositional hearing. And the Court will be taking testimony to assist in determining what, if any services need to be ordered regarding stepfather....” Id. at 8. Stepfather objected, arguing that Mother’s admission was insufficient to sustain a CHINS determination, that her admission was based on hearsay, and that dispensing with a factfinding hearing would deny him due process. DCS joined Stepfather in the objection, noting, “We believe that if he is requesting a fact finding hearing, that he is entitled to that.... ” Id. at 9. The juvenile court overruled the objection and proceeded to disposition. At the ensuing contested dispositional hearing, DCS offered testimony from two family casemanagers as well as Stepfather’s sex offender treatment counselor. DCS also introduced several exhibits, including a preliminary inquiry report which detailed the course of DCS’s initial investigation, and a predispositional report in which DCS recommended various disposi-tional alternatives. Following the hearing, the juvenile court ordered K.D. and K.S. removed from Stepfather’s care. The court ordered Stepfather to complete sex offender treatment and home-based counseling, and it further ordered Stepfather to remain out of the home until his counselors recommended that he return. Stepfather now appeals. Discussion and Decision Stepfather raises several arguments on appeal, but we find one issue dispositive: whether Stepfather was denied due process when the juvenile court adjudicated his stepchildren CHINS on Mother’s admission without a factfinding hearing. Indiana’s CHINS regime is designed to protect children from serious endangerment as the result of parental action or inaction. In re A.H., 913 N.E.2d 303, 306 (Ind.Ct.App.2009). Indiana Code sections 31-34-1-1 through 11 enumerate the various circumstances under which a child may be alleged and found to be a CHINS. Section 31-34-1-1, for example, provides that a child is a CHINS if, before the child becomes eighteen years of age, (1) the child’s physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and (2) the child needs care, treatment, or rehabilitation that: (A) the child is not receiving; and (B) is unlikely to be provided or accepted without the coercive intervention of the court. When DCS initiates a proceeding alleging that a child is a CHINS, it must file a petition identifying the child at issue, the child’s parent, guardian, or custodian, and the statutory and factual predicate for the CHINS allegations. Ind.Code § 31-34-9-3. The (1) child; (2) child’s parents, guardian, or custodian; (3) department; and (4) guardian ad litem or court appointed special advocate are parties to the CHINS proceeding and have all rights of parties under the Indiana Rules of Trial Procedure. Id. § 31-34-9-7. After a CHINS petition is filed, the juvenile court must convene a hearing, id. § 31-34-10-2, inform the child, his parent, and any other parties as to the nature of the proceedings, id. §§ 31-34-10^4, -5, and “determine whether the parent, guardian, or custodian admits or denies — 898 — the allegations of the petition,” id. § 31-34-10-6. “If the parent, guardian, or custodian admits the allegations [in the CHINS petition], the juvenile court shall do the following: (1) Enter judgment accordingly. (2) Schedule a dispositional hearing.” Id. § 31-34-10-8. “[U]nless the allegations of a petition have been admitted, the juvenile court shall complete a factfinding hearing not more than sixty (60) days after a petition alleging that a child is a child in need of services is filed....” Id. § 31-34-11-1 (a). DCS must prove at the factfinding hearing that a child is a CHINS by a preponderance of the evidence. Id. § 31-34-12-3. If after the factfinding hearing the court finds that a child is a CHINS, the court shall: (1) enter judgment accordingly; (2) order a predisposition report; and (3) schedule a dispositional hearing. Id. § 31-34-11-2. If the court finds that a child is not a CHINS, the court shall discharge the child. Id. § 31-34-11-3. Once a child’s CHINS status has been determined, the juvenile court holds a dis-positional hearing to consider (1) alternatives for the care, treatment, rehabilitation, or placement of the child; (2) the necessity, nature, and extent of the participation by a parent, a guardian, or a custodian in the program of care, treatment, or rehabilitation for the child; and (3) the financial responsibility of the parent or guardian of the estate for services provided for the parent or guardian or the child. Id. § 31-34-19-1. The juvenile code further provides: (a) This section applies to the following proceedings: (1) Proceedings to determine whether a child is a child in need of services. (2) Proceedings to determine whether the parent, guardian, or custodian of a child should participate in a program of care, treatment, or rehabilitation for the child. (3) Proceedings to determine whether the parent or guardian of the estate of a child should be held financially responsible for any services provided to the parent or guardian or the child of the parent or guardian. (4) Proceedings to terminate the parent-child relationship. (b) A parent, guardian, or custodian is entitled: (1) to cross-examine witnesses; (2) to obtain witnesses or tangible evidence by compulsory process; and (3) to introduce evidence on behalf of the parent, guardian, or custodian. Id. § 31-32-2-3. Our review of the foregoing statutes reveals an apparent conflict. Section 31-34-10-8 provides that, if a parent, guardian, or custodian admits to the CHINS allegations, the juvenile court “shall” enter judgment accordingly and schedule a disposi-tional hearing. Section 31-34-11-1 also provides that the court shall convene a factfinding hearing “[u]nless the allegations of a petition have been admitted.” But Section 31-32-2-3 establishes that in any “proceedings to determine whether a child is a child in need of services,” — ie., the adjudication phase of a CHINS case— a parent, guardian, or custodian is entitled: “(1) to cross-examine witnesses; (2) obtain witnesses or tangible evidence by compulsory process; and (3) introduce evidence on behalf of the parent, guardian, or custodian.” Moreover, Section 31-34-9-7 provides that the child’s parents, guardian, or custodian are parties to the CHINS proceeding and have all rights of parties under the Indiana Rules of Trial Procedure. The question in this case is: what procedure must the juvenile court follow when — 899 — one parent, guardian, or custodian admits to the CHINS allegations but another denies the allegations and requests a fact-finding hearing? When construing statutes, our function is to determine, give effect to, and implement the legislative intent behind the enactment of the provisions. Neal v. DeKalb County Div. of Family & Children, 796 N.E.2d 280, 284 (Ind.2003). ‘Where two statutes are in apparent conflict they should be construed, if it can be reasonably done, in a manner so as to bring them into harmony.” Patrick v. Miresso, 848 N.E.2d 1083, 1086 (Ind.2006). We presume the legislature intended for them both to have effect when they can be read in harmony with one another. Burd Mgmt., LLC v. State, 831 N.E.2d 104, 108 (Ind.2005). In attempting to harmonize the statutes at issue, we can identify no reason why the admission of one parent, guardian, or custodian in a CHINS proceeding should abridge the statutory procedural due process rights of another. The CHINS adjudication may have consequences for any parent, guardian, or custodian involved, such as separation from the child or required participation in a program of care, treatment, or rehabilitation, so any such party should be afforded an opportunity to be heard and to controvert DCS’s claims, even when another party has elected to admit the allegations. Accordingly, we believe the most logical reconciliation of Sections 31-34-10-8, 31-34-11-1, 31-32-2-3, and 31-34-9-7 is as follows: where a parent, guardian, or custodian admits the allegations in a CHINS petition and the allegations are not contested by any other party, then under Section 31-34-10-8, the admission is conclusive and the juvenile court shall proceed to disposition. But where one parent, guardian, or custodian admits to the CHINS allegations while another parent, guardian, or custodian denies them, then the factfinding procedures and due process provisions set forth in Sections 31 — 34—11— 1, 31-32-2-3, and 31-34-9-7 entitle the contesting party to a factfinding hearing on the CHINS petition. This conclusion is consistent with our Supreme Court’s recent decision, In re N.E., 919 N.E.2d 102 (Ind.2010). In that case, N.E. lived in a home with her mother and three half-siblings. Id. at 103-04. N.E.’s father lived elsewhere along with N.E.’s grandmother. See id. at 104. N.E. spent some of her time living with Father. Id. DCS filed a petition alleging that N.E. and her half-siblings were CHINS. Id. at 103. DCS claimed that domestic violence was occurring in the children’s home between Mother and the alleged father of N.E.’s youngest half-sibling. Id. at 104, 106. Mother admitted to the allegations, but N.E.’s father did not. Id. at 104. Father requested a factfinding hearing. Id. The trial court held a factfinding hearing, after which it adjudicated N.E. a CHINS. Id. Father appealed. Id. A divided panel of this Court reversed, concluding that the State had not alleged, and the juvenile court had not determined, N.E. to be a CHINS with respect to Father. Id. The panel found that a “split analysis” as to each parent was warranted given the circumstances of the case. Id. at 106. Our Supreme Court disagreed. Id. The Court explained that a CHINS determination establishes the status of a child alone. Because a CHINS determination regards the status of the child, a separate analysis as to each parent is not required in the CHINS determination stage.... [T]he conduct of one parent can be enough for a child to be adjudicated a CHINS. Indeed, to adjudicate culpability on the part of each individual parent in a — 900 — CHINS proceeding would be at variance with the purpose of the CHINS inquiry: determining whether a child’s circumstances necessitate services that are unlikely to be provided without the coercive intervention of the court. Said differently, the purpose of a CHINS adjudication is to protect children, not punish parents. The resolution of a juvenile proceeding focuses on the best interests of the child, rather than guilt or innocence as in a criminal proceeding. In this case, the domestic violence in Mother’s home served as the basis of the CHINS petition. Specifically, the State alleged that Mother failed to protect N.E. and her siblings from ongoing domestic violence between herself and the alleged father of her youngest child and that there had been several incidents of domestic violence against Mother in the presence of her children. In these circumstances, it was not necessary for the CHINS petition to make any allegations with respect to Father. Id. (citations omitted). The Court affirmed N.E.’s CHINS adjudication and summarized as follows: “Because a CHINS determination regards the status of the child, the juvenile court is not required to determine whether a child is a CHINS as to each parent, only whether the statutory elements have been established.” Mat 103. N.E. simply clarifies that a CHINS adjudication is not rendered “as to Father” or “as to Mother,” etc. A CHINS determination concerns the status of the child alone, and DCS need not allege or prove fault by any particular person in order to sustain a CHINS finding. These principles in no way affect our holding today. When one party admits to CHINS allegations while another denies them, the denying party is not necessarily challenging the child’s CHINS status only “as to him”— which is the type of defense held improper and unavailing in N.E. Instead, the denying party may dispute the child’s CHINS status in general, regardless of whom the allegations involve. The denying party must have the opportunity to do so, for as noted above, the CHINS adjudication may carry repercussions for him, even where DCS has alleged no omission, misconduct, or culpability on his part. In short, N.E. is a “sufficiency” case addressing the type of proof required to support a CHINS determination. This case, on the other hand, concerns when and by whom that proof may be disputed.1 Here DCS filed a petition alleging that Stepfather’s stepchildren were CHINS. Stepfather was named as a party and identified as “Step-Father/Custodian” in the petition. Mother admitted to the CHINS allegations, but Stepfather contested them and requested a factfinding hearing. The juvenile court denied Stepfather’s request and adjudicated the children CHINS on Mother’s admission. In line with the foregoing, we conclude that Stepfather was a stepparent/custodian-party entitled to a CHINS factfinding hearing and that the juvenile court erred by denying him one. DCS maintains that “Stepfather arguably received a factfinding hearing, although called by a different name.” Appellee’s Br. p. 15. DCS claims that Stepfather’s contested dispositional hearing operated as a factfinding hearing and afforded Stepfather any due process he was purportedly denied in the adjudication phase. We disagree. A dispositional hearing cannot substitute for a contested CHINS factfinding hearing, just as a trial on damages cannot substitute for a trial — 901 — on liability in a tort case and a sentencing hearing cannot replace a trial on guilt in criminal proceedings. The issues litigated in each stage are different. There are also critical procedural distinctions. In particular, while the rules of evidence are generally applicable in the factfinding portion of a CHINS proceeding, the rules do not apply in the dispositional setting. Cf. Ind. Evidence Rule 101; Roark v. Roark, 551 N.E.2d 865, 868-69 (Ind.Ct.App.1990) (hearsay inadmissible at fact-finding hearing); Ind.Code § 81-34-19-2 (DCS’s predispositional report admissible at dispositional hearing to the extent that the report contains evidence of probative value even if the report would otherwise-be excluded); C.C. v. State, 826 N.E.2d 106, 111 (Ind.Ct.App.2005) (hearsay admissible in delinquency dispositional proceedings); Matter of 473 N.E.2d 637, 642 (Ind.Ct.App.1985) (same). For the reasons stated, we conclude that Stepfather was denied due process when he did not receive a factfinding hearing on DCS’s CHINS petition. We reverse and remand for proceedings consistent with this opinion. Reversed and remanded. ROBB, C.J., concurs. MAY, J., dissents with separate opinion. Footnotes [1] We also note that the father in N.E. received a factfinding hearing.