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ATTORNEY FOR APPELLANT Steven J. Halbert Carmel, Indiana

ATTORNEY FOR APPELLEE Robert J. Henke Indianapolis, Indiana Deborah S. Burke Marion, Indiana

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Indiana Supreme Court
_________________________________ No. 49S02-0906-JV-270 IN THE MATTER OF N.E., A CHILD IN NEED OF SERVICES, N.L. (FATHER),

In the

FILED
Jan 06 2010, 10:11 am
of the supreme court, court of appeals and tax court

CLERK

Appellant (Respondent below), v. INDIANA DEPARTMENT OF CHILD SERVICES, Appellee (Petitioner below). _________________________________ Appeal from the Marion Superior Court, Juvenile Division, No. 49D09-0712-JC-53883-886 The Honorable Geoffrey Gaither, Magistrate The Honorable Marilyn A. Moores, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-0806-JV-522 _________________________________ January 6, 2010 Sullivan, Justice. The trial court adjudicated a child to be a "Child in Need of Services" ("CHINS") without specifically alleging that the child was a CHINS with respect to the child's father. The father contends that the CHINS adjudication does not apply to him. The question in a CHINS adjudication is not parental fault, but whether the child needs services. Because a CHINS determina-

tion regards the status of the child, the juvenile court is not required to determine whether a child is a CHINS as to each parent, only whether the statutory elements have been established. Background N.E. was born on January 24, 2004, the daughter of a mother ("Mother") of three other children, each of the four having a separate father. In December, 2007, the Department of Child Services ("State") filed a petition in the Juvenile Division of the Marion Superior Court alleging that all four of Mother's children were CHINS. The State typically files such a petition when it believes a child has been the victim of abuse, neglect, or abandonment.

The court filing recited that Mother was unable to protect her children from domestic violence. Because the State believed that none of the fathers had established paternity (and had not come forward to demonstrate the ability to parent their children appropriately), it removed the children from Mother's home. N.E. was not at Mother's home when the State removed the children. The State located N.E. at the home of her paternal grandmother ("Grandmother") and placed her into foster care with her siblings.

The juvenile court subsequently held a hearing at which the State conceded that N.E. spent a great deal of time at the home of Grandmother, where N.L. ("Father") also lived. The court ordered Mother and Father to undergo DNA testing to determine the paternity of N.E. The court established Father's paternity and placed N.E. in the custody of Father and Grandmother. About a week later, however, the State filed a motion to remove N.E. from Father and Grandmother, setting forth several reasons: (1) Father had a prior conviction for domestic battery; (2) N.E.'s paternal grandfather lived in the house; (3) N.E.'s paternal grandfather was addicted to cocaine; and (4) the paternal grandfather had an outstanding warrant for his arrest due to a probation violation. On February 1, 2008, the court returned N.E. to foster care with her siblings.

On February 12, 2008, Mother admitted that her children were CHINS; Father did not. He requested a fact finding hearing. During the fact finding hearing the parties presented conflicting evidence as to where N.E. spent most of her time. Father testified that N.E. lived three

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years and eight months out of her first four years with Father and Grandmother. Grandmother testified that she and Father took care of N.E. 95% of the time. Mother testified that N.E. lived with her most of the time.

The Guardian ad Litem stated that:

There are varying [accounts] as to how much time [N.E.] has lived with her father in the home of the [paternal1] grandmother; however, there is no doubt that it was extensive and went back to an early age for [N.E.]. There is also no doubt that [N.E.] was appropriately cared for while in the home, whether there a majority of the time or for only three to four days a week. (Appellant's App. 154.) At the close of evidence, the court found that N.E. was a CHINS; N.E. remained in foster care. On May 30, 2008, the court held a dispositional hearing and found the children to be wards of the State. The trial court made no specific findings as to Father or its reasons for not placing N.E. with Father.

Father appealed. A divided Court of Appeals reversed, concluding that the State had not alleged, and the juvenile court had not determined, N.E. to be a CHINS with respect to Father. In re N.E., 903 N.E.2d 80, 89 (Ind. Ct. App. 2008). Judge Vaidik dissented. She was of the view that "a CHINS determination regards the status of the child," and that once properly determined, it was applicable to both parents. Id. at 89-90. However, both the majority of the Court of Appeals and Judge Vaidik concluded that the juvenile court's dispositional decree was deficient in not articulating reasons for not placing N.E. with Father. The State sought, and we granted, transfer. Ind. Appellate Rule 58(A).2
The Guardian ad Litem said "maternal" grandmother but the context clearly shows that he meant "pate rnal" grandmother.
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In addition to Father's contentions concerning N.E.'s adjudication as a CHINS and the content of the dispositional order, Father also argued that the court held the fact finding hearing outside the time permitted by statute. We summarily affirm the decision of the Court of Appeals regarding the timeliness of the hearing. App. R. 58(A)(2).
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Discussion

I

Because a CHINS proceeding is a civil action, the State must prove by a preponderance of the evidence that a child is a CHINS as defined by the juvenile code. Ind. Code

Download N.E., Alleged to be CHINS; N.L. v. IDCS.pdf

Indiana Law