Parents Lose Constitutional Challenge Of Post-Secondary School Expenses

Jennifer Nelson for www.theindianalawyer.com

Bound by precedent, the Indiana Court of Appeals declined to find the statute allowing courts to impose post-secondary educational expenses on divorced parents is unconstitutional. The parents had argued the statute needs another look.

In this consolidated appeal, divorced parents from Elkhart, Kosciusko and Marion counties challenged the trial court’s order that a parent pay a portion of his or her child’s college expenses. The parents maintained the statutory authority is unconstitutional because it violates a divorced parent’s equal protection right because it places the divorced parent in a different position than married parents. The divorced parents also claimed the statute interferes with a parent’s fundamental right to determine his or her child’s upbringing and education.

The Indiana Supreme Court in 1991 previously rejected such claims and upheld a substantially similar prior version of the statute in question in Neudecker v. Neudecker, 577 N.E.2d 960 (Ind. 1991). But the divorced parents in the instant case argued because that case is more than 25 years old, the court “should review this issue anew as prior law is outdated and not in sync with our current society.”

“[I]t is well-established that as Indiana’s intermediate appellate court, we are bound to follow Indiana Supreme Court precedent,” Judge Cale Bradford wrote, declining the parents’ request to overturn Neudecker.

The Court of Appeals also ruled with respect to father Jasen Simcox that the trial court did not abuse its discretion in crediting him with nonconforming child support payments made to ex-wife Amy Likes or in basing his financial obligation for his daughter’s college expenses on the cost of a public university rather than a private one.

The case is Lisa Gill v. Jeffery B. Gill; In Re the Marriage Of: Jasen Simcox v. Amy S. (Simcox) Likes; and Paul King v. Jennifer Devine, 20A03-1607-DR-1569.

Appeals Court Reverses CHINS Finding

Dave Stafford for www.theindianalawyer.com

A trial court erred in declaring a boy in the custody of his father to be a child in need of services on account of his meth-abusing mother, the Indiana Court of Appeals ruled Tuesday.

The appellate panel reversed and vacated the Monroe County CHINS adjudication in In the Matter of: N.C. (Minor Child), Child in Need of Services and J.M. (Father) v. The Indiana Department of Child Services, 53A01-1610-JC-2479. N.C.’s father, J.M., and mother are divorced. N.C. and mother’s other children were removed from her home after authorities learned she had been using methamphetamine in the presence of her children.

N.C’s father had temporary custody and has petitioned the court for permanent custody, which the appeals panel noted is scheduled for hearing in June. But even as father’s counsel argued father showed no need for services and had cared for N.C. for months, the trial court determined he was a CHINS.

Judge Margret Robb wrote for the panel that subsequent events show the parties appear to have been dismissed from the CHINS action, potentially making this case moot. Nevertheless, she wrote, “(W)e conclude a decision on the merits is warranted and necessary. A CHINS adjudication, even one as short-lived as this one, can have serious consequences for families. Indiana Code section 31-35-2-4(b)(2)(B)(iii) provides that two separate CHINS adjudications can be the basis for a petition to terminate parental rights. Although N.C. is not currently a CHINS, it is still on record that he has been adjudicated a CHINS and if that adjudication was erroneous, it must be corrected to protect the integrity of the family going forward.”

The COA also found the court had failed to show proof of the three requirements of a CHINS adjudication — the parent’s action or inactions seriously endangered the child; the child’s needs are unmet; and those needs are likely to be unmet without the state’s intervention.

“(W)hatever neglect N.C. experienced due to Mother’s issues at the outset of this case was rectified by being placed in Father’s home,” Robb wrote. “… DCS is not relieved of its burden to prove by a preponderance of the evidence that the coercive intervention of the court was required.”