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ATTORNEY FOR APPELLANT Amy Karozos Greenwood, Indiana

ATTORNEYS FOR APPELLEE Robert J. Henke Donna Lewis Indiana Department of Child Services Indianapolis, Indiana

_____________________________________________________________________________

Indiana Supreme Court
_________________________________ No. 49S02-1107-JC-416 IN THE MATTER OF: K.D. & K.S. S.S. (FATHER),

In the

FILED
Mar 13 2012, 2:32 pm
of the supreme court, court of appeals and tax court

CLERK

Appellant (Respondent below),
V.

THE INDIANA DEPARTMENT OF CHILD SERVICES, AND CHILD ADVOCATES, INC.,

Appellee (Petitioner below),

Co-Appellee (Guardian Ad Litem). _________________________________ Appeal from the Marion Superior Court, Nos. 49D09-0911-JC-050107 & 49D09-0911-JC050108 The Honorable Marilyn Moores, Judge The Honorable Beth Jansen, Magistrate _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1004-JC-462 _________________________________ March 13, 2012

David, Justice. We have granted transfer in this case where a party to a CHINS matter requested a factfinding hearing and was instead given a contested dispositional hearing. We write to clarify any ambiguity that exists regarding the differences between a CHINS adjudication and the procedural due process safeguards that are in place for parties to a CHINS disposition. We hold that a parent who requests a contested fact-finding hearing has a due process right to that hearing. Facts and Procedural History S.S. (Stepfather) and K.S. (Mother) have been married for five years. Mother has two children, K.D., who was born on June 19, 1992, and K.S., who was born on April 1, 1995. In 2009, the Department of Child Services (DCS) was contacted when letters that K.D. wrote to her boyfriend surfaced and contained allegations of inappropriate contact of a sexual nature between K.D. and Stepfather. K.D. explained that she wrote the letters because she was angry at

Stepfather and that he never touched her inappropriately. During the course of its investigation, DCS learned that fifteen years earlier Stepfather was convicted of child molesting as a Class A felony and criminal confinement as a Class C felony. Stepfather was incarcerated but never completed any sex-offender treatment. By refusing to complete his sex-offender treatment program, Stepfather violated his probation and was required to serve additional time incarcerated. When asked about these convictions, Stepfather blamed the then twelve-year-old victim and the victims mother, refused to take responsibility for the child molestation, and indicated his convictions were a result of a plea agreement to avoid additional convictions and additional jail time. DCS, Mother, and Stepfather entered into a program of informal adjustment where Mother and Stepfather agreed to maintain an appropriate home and complete home-based counseling, and Stepfather agreed to complete a sex-offender program. The program required Stepfather to complete a sexual history questionnaire, participate in group counseling sessions, and complete a polygraph examination. Stepfather did not complete the sexual history

questionnaire or the polygraph, and he did not regularly participate or attend the group counseling sessions. At the end of the six-month term of the Informal Adjustment, DCS

requested additional time for Stepfather to complete the sex-offender treatment. 2

In October 2009, DCS held a child and family team meeting to address Stepfathers noncompliance. Stepfather, Mother, DCS case manager, DCS supervisor, the home-based counselor, and Dr. Trimble, Stepfathers sex-offender counselor, all attended the meeting. At that meeting, Dr. Trimble informed those present that Stepfather failed to attend eight of the weekly sessions between July 30 and October 26, 2009. When he was attending the group therapy sessions, Stepfather would respond, "I dont want to participate." When Dr. Trimble confronted him, Stepfather told him, "Im done. I dont need this, and Im getting a lawyer." On November 2, 2009, DCS filed a petition alleging that K.D. and K.S. were children in need of services (CHINS) as defined in Indiana Code section 31-34-1-1 (2008). On December 10, 2009, Mother admitted the children were CHINS. Specifically, Mother admitted, On or about October 30, 20009 the Marion County Department of Child Services (MCDCS) determined by its Family Case Manager (FCM) [], these children to be in need of services because their mother, [K.S.] and their stepfather, [S.S.], have been involved with the DCS through an Informal Adjustment but have failed to successfully complete all services under the agreement. Specifically, [Stepfather] is an untreated sexual offender and has not yet completed his sexual offender treatment, but [Mother] continues to allow him to live in the home. Therefore the family can benefit from services. Stepfather continued to deny the allegations that the children were CHINS. The court set the matter for a dispositional hearing for Mother and a contested fact-finding hearing for Stepfather. After Mothers admission, but prior to the contested fact-finding hearing scheduled for Stepfather, this Court decided In re N.E. v. DCS, 919 N.E.2d 102 (Ind. 2010). Based on its interpretation of In re N.E., the trial court converted the contested fact-finding hearing scheduled for Stepfather into a contested dispositional hearing. The trial court determined that a contested fact-finding hearing as to Stepfather was not required. At the contested dispositional hearing, the juvenile court swore in witnesses, took testimony, allowed Stepfathers counsel to cross-examine witnesses, allowed Stepfathers counsel to challenge the admissibility of evidence, allowed Stepfathers counsel to offer exhibits and witnesses, asked for closing arguments, allowed for proposed findings, and took the matter under advisement.

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At the conclusion of the hearing, the court ordered Stepfather to leave the family home for the safety of the children. DCS was ordered to immediately remove the children if Stepfather did not leave. Stepfather told the court, "I aint going nowhere. You can forget that." Then the bailiff was instructed to have Stepfather leave the courtroom. On April 5, 2010, the trial court entered findings of fact and conclusions of law, which held that the children had previously been adjudicated CHINS and that Stepfather was now ordered to complete a sexual-offender treatment program. The court ordered Stepfather to remain out of the home until further recommendation of the parties. Stepfather appealed the juvenile courts order finding the children to be in need of services. A majority of the Court of Appeals found that Stepfather was denied due process by not receiving a fact-finding hearing. In re K.D. v. DCS, 942 N.E.2d 894, 901 (Ind. Ct. App. 2011). We granted transfer. Standard of Review A CHINS proceeding is a civil action; thus, "the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code." In re N.E., 919 N.E.2d 102, 105 (Ind. 2010). We neither reweigh the evidence nor judge the credibility of the witnesses. Egly v. Blackford County Dept of Pub. Welfare, 592 N.E.2d 1232, 1235 (Ind. 1992). We consider only the evidence that supports the trial courts decision and reasonable inferences drawn therefrom. Id. We reverse only upon a showing that the decision of the trial court was clearly erroneous. Id. I. The CHINS Adjudication There are three elements DCS must prove for a juvenile court to adjudicate a child a CHINS. DCS must first prove the child is under the age of eighteen; DCS must prove one of eleven1 different statutory circumstances exist that would make the child a CHINS; and finally, in all cases, DCS must prove the child needs care, treatment, or rehabilitation that he or she is not

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These eleven different statutory circumstances are codified in Indiana Code sections 31-34-1-1 to 11.

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receiving and that he or she is unlikely to be provided or accepted without the coercive intervention of the court. In re N.E., 919 N.E.2d at 105. In this case, DCS alleged the children were CHINS under the general category of neglect as defined in Indiana Code section 31-34-1-1. The statute reads as follows: A child is a child in need of services if before the child becomes eighteen (18) years of age: (1) The childs physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the childs 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) (B) Ind. Code

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