In the Matter of R.L. (Minor Child) and J.R. (Mother) v. Indiana Department of Child Services, and Child Advocates, Inc.

FILED
OPINION ON REHEARING Aug 29 2019, 8:15 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Andrew Bernlohr Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Aaron T. Craft
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of R.L. (Minor August 29, 2019
Child) Court of Appeals Case No.
18A-JC-2927
and
Appeal from the Marion Superior
J. R. (Mother), Court
Appellant-Respondent, The Honorable Marilyn Moores,
Judge
v.
The Honorable Gael Deppert,
Magistrate
Indiana Department of Child
Trial Court Cause No.
Services,
49D09-1803-JC-638
Appellee-Petitioner,
and
Child Advocates, Inc.,
Guardian Ad Litem.
Riley, Judge.
Court of Appeals of Indiana | Opinion on Rehearing 18A-JC-2927 | August 29, 2019 Page 1 of 5
[1] We grant DCS’s petition for rehearing to address new guidance issued by our
supreme court on the application of the doctrine of res judicata to CHINS
proceedings. After we issued our opinion in this matter, but before the time for
DCS to seek rehearing or transfer had elapsed, our supreme court issued its
opinion in Matter of Eq.W., 124 N.E.3d 1201 (Ind. 2019). In Eq.W., DCS
pursued a CHINS proceeding which the trial court denied on November 7,
2017. Id. at 1206. The very next day, DCS filed a second CHINS raising only
issues that had already been litigated in the first CHINS. Id. at 1206-07. The
trial court granted the second CHINS. Id. at 1207. Eq.W.’s mother appealed,
claiming that res judicata barred DCS from relitigating the same, or known,
issues in the second CHINS that DCS had failed to prevail upon in the first
CHINS. Matter of Eq.W., 106 N.E.3d 536, 539 (Ind. Ct. App. 2018), vacated in
part, aff’d in part. Another panel of this court affirmed the trial court, finding
that Eq.W.’s mother had waived her argument by not motioning to dismiss the
CHINS on grounds of res judicata, but the court strongly condemned the
manner in which DCS had litigated the case. Id. at 543.
[2] Our supreme court accepted transfer of the case and found that, indeed,
Eq.W.’s mother had waived her claim by not raising it to the trial court. Matter
of Eq.W., 124 N.E.3d at 1212-14. The court also found that the trial court did
not commit fundamental error by failing to dismiss the CHINS sua sponte. Id. at
1214-15. However, the court clarified that res judicata, and specifically claim
preclusion, does apply to CHINS cases. Id. at 1208-11. Noting the grave
Court of Appeals of Indiana | Opinion on Rehearing 18A-JC-2927 | August 29, 2019 Page 2 of 5
interests at stake and the heightened due process provided in CHINS
proceedings, the court concluded that application of the doctrine of res judicata
could prevent repeated filings by DCS with no new factual basis
until one petition finally sticks. It could also prevent repetitive
litigation of issues that have been or could have been decided in
an initial CHINS filing. As such, application of this doctrine to
CHINS proceedings encourages DCS to fully investigate and
present a more complete picture of the type of alleged conduct
underpinning a CHINS petition. After all, trial courts certainly
do not suffer when an issue is fully briefed and supported by
evidence.
Id. at 1211 (bold original). The supreme court explained that, in order to avoid
the preclusive effects of a prior proceeding, in a subsequent CHINS, DCS must
allege new material facts separate from what was available to them at the fact-
finding hearing in the prior proceeding. Id. at 1212. Agreeing with the State
that past acts by parents can be relevant to a subsequent CHINS and noting that
DCS must necessarily rely on parents’ past actions to fully inform the trial court
about why the CHINS was filed, the court explained the use of evidence of a
parent’s prior actions as follows:
Practically speaking, if the parent or guardian is successful in
showing claim preclusion applies to bar a subsequent petition,
the CHINS petition must be dismissed. However, this dismissal
does not mean the State is forever barred from filing a subsequent CHINS
petition or even from using a parent’s prior actions as evidence in support
of a new filing. 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 that took place after the dismissal of the prior
proceeding, the State may file a new CHINS petition.
Court of Appeals of Indiana | Opinion on Rehearing 18A-JC-2927 | August 29, 2019 Page 3 of 5
Id. (emphasis added). Thus, our supreme court has held that res judicata does
not bar the filing of a subsequent CHINS as long as DCS raises some new
allegations, and it appears that evidence of a parent’s prior actions may be used
to support that new filing.
[3] In its petition for rehearing, DCS argues that, in light of Eq.W., this court erred
when it remanded for reconsideration of the 2018 CHINS without reference to
the 2017 CHINS matters because Eq.W. held that evidence of a parent’s prior
actions can be presented in a subsequent CHINS as long as DCS presents new
allegations. DCS essentially argues that, once it filed the 2018 CHINS that
contained a few new allegations, it was entitled to rely on all allegations and
evidence of Mother’s prior conduct in proving the new 2018 CHINS.
[4] This court’s opinion is in accord with Eq.W. in that this court applied the
doctrine of res judicata to this CHINS proceeding. This court’s implicit
conclusion that DCS was allowed to file the 2018 CHINS, which this court
acknowledged contained some new allegations, is also in line with the holding
of Eq.W. However, Eq.W. has now clarified that DCS may rely on evidence of
a parent’s prior conduct in bringing a subsequent CHINS, and, therefore,
contrary to this court’s decision, the trial court must be able to rely on that
evidence in rendering its determination.
[5] Mother has not filed a response to DCS’s petition for rehearing, and she has
never claimed that the issue preclusion branch of res judicata or any other reason
barred DCS from relitigating specific issues that had been or could have been
Court of Appeals of Indiana | Opinion on Rehearing 18A-JC-2927 | August 29, 2019 Page 4 of 5
argued in the 2017 CHINS. The only argument presented by Mother on appeal
was that claim preclusion barred DCS from bringing the 2018 CHINS, which
Eq.W. now has definitively settled was not a meritorious argument. Eq.W. did
not set any limits or provide further guidance on DCS’s ability to rely on a
parent’s previous conduct when filing a subsequent CHINS. While it is unclear
whether our supreme court intended by its decision in Eq.W. to allow DCS to
relitigate in a subsequent CHINS all issues previously raised as long as some
new allegations are added, Mother has not argued issue preclusion or provided
us with any other reason that DCS may not do so. Therefore, it seems that this
is not a fitting case for this court to attempt to probe the boundaries of the use of
such evidence in light of Eq.W.
[6] Based on the foregoing, we grant rehearing, affirm the trial court in all respects,
and clarify that remand is now not necessary in light of the supreme court’s
holding that DCS may rely on evidence of a parent’s prior conduct in filing a
subsequent CHINS and in light of the fact that Mother offered only the
discredited issue of claim preclusion for our consideration on appeal.
[7] Affirmed.
[8] Bailey, J. and Pyle, J. concur
Court of Appeals of Indiana | Opinion on Rehearing 18A-JC-2927 | August 29, 2019 Page 5 of 5