In the Matter of: Ce.B. and Co.B. (Minor Children) and C.K. (Custodian) v. The Indiana Department of Child Services , 2017 Ind. App. LEXIS 153 ( 2017 )

FILED
Apr 07 2017, 7:57 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas G. Krochta Curtis T. Hill, Jr.
Evansville, Indiana Attorney General of Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: April 7, 2017
Ce.B. and Co.B. (Minor Court of Appeals Case No.
82A01-1610-JC-2442
Children)
Appeal from the Vanderburgh
and Superior Court
C.K. (Custodian), The Honorable Brett J. Niemeier,
Appellant-Respondent, Judge
Trial Court Cause No.
v. 82D04-1607-JC-1191
82D04-1607-JC-1192
The Indiana Department of
Child Services,
Appellee-Petitioner
Vaidik, Chief Judge.
Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017 Page 1 of 7
Case Summary
A custodian of two siblings appeals, claiming that the juvenile court erred in
determining that the siblings were children in need of services (CHINS) without
first holding a factfinding hearing. We find, however, that the juvenile court
did hold a factfinding hearing in this case. At that hearing, the custodian,
represented by counsel, chose to stipulate that the facts contained in the CHINS
petitions and reports of preliminary inquiry were true. The juvenile court then
reviewed those materials and, based on the stipulated facts contained in them,
made a legal determination that the children were CHINS. Furthermore, the
custodian does not make any argument that his stipulation should be
withdrawn for cause. We therefore affirm the juvenile court.
Facts and Procedural History
[1] On July 5, 2016, DCS filed petitions alleging that Co.B., born October 9, 2010,
and Ce.B., born April 17, 2015, were CHINS pursuant to Indiana Code section
31-34-1-1. Appellant’s App. Vol. II pp. 18-19, 29-30. The petitions alleged that
the children lived with their mother, N.B. (“Mother”), and their Mother’s
boyfriend, C.K. (“Custodian”), and that the children’s father was in prison.1
The petitions further alleged that Mother and Custodian engaged in domestic
violence in front of Co.B., that Custodian was recently arrested for a domestic-
1
A separate order was entered regarding the children’s father. Neither Mother nor the children’s father is
part of this appeal.
Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017 Page 2 of 7
violence incident involving Mother (and had charges pending against him for
that incident), that Custodian used cocaine and marijuana, and that Mother
used marijuana. An initial hearing was held that same day, and Mother and
Custodian were each appointed counsel.
[2] Mother and Custodian appeared in court with their attorneys on July 27. The
following colloquy occurred between the judge, Mother, Custodian, and the
attorneys:
[Judge]: [H]ow does your client [want to] proceed?
[Mother’s attorney]: Your Honor, my client’s prepared to
stipulate to the petition and affidavit.[2]
[Custodian’s attorney]: As would my client, Your Honor.
[Judge]: And you all understand by stipulating we’re not having
a trial? I just refresh my memory by reading this and deciding
the case only on this. You understand that?
[Mother]: Yes, sir.
2
The probable-cause sections of the reports of preliminary inquiry contained additional facts about Mother
and Custodian’s relationship as well as their drug use. See Appellant’s App. Vol. II pp. 20-22, 31-33. For
example, those sections alleged that Mother was homeless but stayed with Custodian, who often beat her up
and threw her out of his house. On one occasion, when Mother’s father came to Custodian’s house to get
Mother and the children, Custodian ran out of the house with a sword. In addition, Co.B. told a Family
Case Manager that Mother and Custodian smoked “white and brown blunts” around him. Id. at 21, 32.
Contrary to Custodian’s implication in his brief, these allegations are sufficient to demonstrate that the
children suffered harm or required services.
Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017 Page 3 of 7
[Custodian]: Yes, sir.
[Judge]: State, you also willing to do that?
[DCS’s attorney]: Yes, Your Honor.
[Judge]: Let me check a couple minutes here. Alright, Court will
find, based upon the evidence before it, that the children are in
need of services and set the matter for dispositional hearing.
Tr. p. 5. The judge ordered Mother and Custodian not to use illegal drugs or
alcohol and to undergo random drug screens and set a dispositional hearing for
August 24.
[3] Mother and Custodian appeared before a judge pro tem on August 24.
Mother’s attorney told the judge pro tem that although Mother had stipulated
in July, she had “reconsidered” and would now like to “withdraw her
stipulation.” Id. at 9. Custodian’s attorney said that Custodian would also like
to withdraw his stipulation. The judge pro tem put the matter on the judge’s
calendar for September 7.
[4] Mother appeared in court on September 7, but Custodian did not. The judge
asked Mother’s attorney why Mother was seeking to withdraw her stipulation,
and Mother’s attorney explained as follows:
Your Honor, I think since the stipulation there have been some
issues with regard to the services that the Department is
requesting. The[y] don’t feel that the actions that were alleged in
the petition would give rise to a CHINS. And then the
Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017 Page 4 of 7
combination with that along with the services that are being
requested have led them to revisit the question of whether the
stipulation would be the appropriate thing to do. I don’t believe
that disposition has been held yet. . . .
Id. at 14. Custodian’s attorney argued that although Custodian was not present
in court, he “would adopt Mother’s argument.” Id. at 15. DCS’s attorney
objected, noting that Mother and Custodian were represented by counsel when
they entered their stipulations. The judge took the matter under advisement
and set a review hearing for September 21.
[5] Mother and Custodian appeared in court on September 21. The judge denied
their requests to withdraw their stipulations and set a dispositional hearing for
October 5.
[6] At the dispositional hearing, Custodian declared that he “want[ed] a trial.” Id.
at 25. The same judge pro tem from before reminded Custodian that the judge
had already denied his request to withdraw his stipulation. Unsatisfied,
Custodian responded, “So it’s not my right to have a trial? Is that what you’re
saying?” The judge pro tem then clarified that Custodian “had a right to a trial
before [he] stipulated to the facts in the petition” and advised him that he could
appeal that order if he wanted. Id. at 27 (emphasis added).
Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017 Page 5 of 7
[7] Custodian now appeals.3
Discussion and Decision
[8] Custodian contends that the juvenile court erred in finding that the children
were CHINS without first holding a factfinding hearing. See Ind. Code § 31-34-
11-1 (“[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
[CHINS petition] is filed . . . .”).4 However, the juvenile court did hold a
factfinding hearing in this case on July 27. At that hearing, Custodian,
represented by counsel, chose to stipulate that the facts contained in the CHINS
petitions and reports of preliminary inquiry were true. See Tr. p. 5. The
juvenile court then reviewed those materials and, based on the stipulated facts
contained in them, made a legal determination that the children were CHINS.
Based on this sequence of events, it appears that Custodian’s argument is
actually that the juvenile court erred in denying his request to withdraw his
stipulation. But as Custodian acknowledges on appeal, see Appellant’s Br. p.
15, stipulations generally may only be withdrawn for cause:
As a general rule, stipulations may not be withdrawn without the
consent of both parties, or for cause. Typically, the grounds for
setting aside a stipulation include fraud, mistake, undue
3
Following the dispositional hearing, the juvenile court entered a dispositional order for both Mother and
Custodian. Appellant’s App. Vol. II pp. 45, 50.
4
Custodian does not argue that he admitted the allegations contained in the petitions. In fact, he asserts that
he denied the allegations and is entitled to a factfinding hearing. Appellant’s Br. p. 14.
Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017 Page 6 of 7
influence, or grounds of a similar nature. It is not a ground for
relief that the stipulation was disadvantageous to the party
seeking relief.
Harlan v. Harlan, 544 N.E.2d 553, 556 (Ind. Ct. App. 1989) (citation omitted),
reh’g denied, aff’d, 560 N.E.2d 1246 (Ind. 1990); see also 83 C.J.S. Stipulations §
100 (2010). Custodian, however, did not set forth any grounds for cause either
below or on appeal. We therefore affirm the juvenile court.
[9] Affirmed.
Bailey, J., and Robb, J., concur.
Court of Appeals of Indiana | Opinion 82A01-1610-JC-2442 | April 7, 2017 Page 7 of 7