Katie Stancombe for www.theindianalawyer.com

If the Department of Child Services has enough concern to file a child in need of services petition, it should have enough evidence to win the case the first time around, the Court of Appeals warned Friday.

After DCS presented and lost its first CHINS petition filed on behalf of five minor children because it failed to present sufficient evidence, the appellate court expressed concerns about the way DCS handles its cases.

In June 2017, the five children were removed from the care and custody of their mother, V.B., after DCS alleged the mother was under the influence of drugs while parenting the children. However, the department failed to present sufficient and new evidence at a subsequent factfinding hearing, so the Monroe Circuit Court dismissed the CHINS petition on Nov. 7, 2017.

The next day, DCS filed a new petition alleging the children were CHINS based on positive drug screens, erratic behavior from the children’s father at a child and family team meeting, and the parents’ struggle to pay their utility bills. During a fact-finding hearing in December 2017, DCS presented evidence that the children have experienced inconsistent and ineffective homeschooling from the mother and about the uncleanliness of the home and the parent’s financial struggles. However, it offered no evidence that the parents had provided any positive drug screens.

When the trial court found the children CHINS in January 2018, V.B. argued that her due process rights “were violated because DCS was allowed to file a second CHINS petition based on substantially similar allegations that were found insufficient the first time.”

The Court of Appeals found that the mother’s argument concerning due process and principles of res judicata were waived, as she did not move to dismiss the CHINS petition based on those issues during the fact-finding hearing.

“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 for the court. “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.”

Baker continued to write that the appellate court shared the mother’s concerns that such a process “allows DCS ‘to take multiple bites at the apple by litigating piecemeal until a court of competent jurisdiction finally determine(s( that the facts presented (are) sufficient to carry (DCS’s) burden.’”

V.B. also argued that her children should have been returned to her care after the November 2017 hearing, instead of continuing to remain with a relative until DCS filed a new CHINS petition and sought a new detention hearing the next day. While the COA found this claim insufficient, it again addressed concerns regarding DCS processes.

The appellate court noted that if “DCS had simply put in a better effort during the first CHINS case, this problem would not have arisen at all.”  Despite its disapproval, the COA found that the evidence supports the trial court’s conclusion that the children are CHINS.