Opinion
22A-JC-2422
04-13-2023
In the Matter of: B.P., S.P., L.P., Mad.P., and Mac.P. (Minor Children), Children in Need of Services, v. Indiana Department of Child Services, Appellee-Petitioner J.P. (Mother), Appellant-Respondent,
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Offices, LLC Brooklyn, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Indianapolis, Indiana David E. Corey Supervising Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Interlocutory Appeal from the Shelby Superior Court The Honorable R. Kent Apsley, Judge. Trial Court Cause Nos. 73D01-2208-JC-20, 73D01-2208-JC-21, 73D01-2208-JC-22, 73D01-2208-JC-23, 73D01-2208-JC-24
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Offices, LLC Brooklyn, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Indianapolis, Indiana David E. Corey Supervising Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
MAY JUDGE
[¶1] In this interlocutory appeal, J.P. ("Mother") appeals the denial of her motion to dismiss the CHINS case involving her children, B.P., S.P., L.P. Mad.P., and Mac.P. (collectively, "Children"). She also appeals the trial court's order that she submit to a psychological examination pursuant to Indiana Trial Rule 35. Mother presents two issues, which we restate as:
The record indicates Children's individual fathers were contacted as part of the Child in Need of Services matter, but some could not be located and none of them participated. They do not participate in this appeal.
1. Whether the trial court erred when it denied Mother's motion to dismiss the CHINS proceedings based on res judicata; and
2. Whether the trial court abused its discretion when it ordered Mother to undergo a psychological examination.
We affirm.
Facts and Procedural History
[¶2] Children's respective birthdates are as follows: B.P. was born November 25, 2005; S.P. was born December 3, 2008; L.P. was born February 28, 2012; and twins, Mac.P. and Mad.P., were born December 18, 2019. On May 12, 2021, the Department of Child Services ("DCS") filed a petition alleging Children were Children in Need of Services ("CHINS") ("2021 CHINS Petition") based on Mother's arrest-for Class C misdemeanor reckless driving, Class B misdemeanor leaving the scene of an accident, and Level 6 felony resisting law enforcement-which left Children unsupervised in a home where there was no electricity. On May 13, 2021, the trial court held a detention hearing to determine Children's placement. Mother used profane language with the trial court during that hearing, which DCS alleged was due to her mental instability.
[¶3] The trial court placed Children in the care of their maternal grandmother, who had been staying at Mother's home with Children since Mother's arrest. DCS subsequently placed Children with their maternal aunt. Between the time of the detention hearing and the factfinding hearing on July 26, 2021, Mother was arrested for Level 6 felony intimidation, Class A misdemeanor criminal trespass, Class B misdemeanor disorderly conduct, and Level 6 felony battery by bodily waste. The first three charges arose from an incident during which Mother attempted to take Children from their placement with maternal aunt, and the final charge arose because Mother spat on an officer while in jail.
[¶4] The trial court held its factfinding hearing on the 2021 CHINS Petition on July 26, 2021. During that hearing, Mother was disruptive and verbally abusive to the trial court. She eventually left the hearing, and the remainder of the hearing was held in her absence. The trial court declared Children were CHINS based on Mother's mental health issues. On November 22, 2021, the trial court held a dispositional hearing. On November 24, 2021, the trial court issued its dispositional order, requiring Mother to, among other things, submit to a psychological examination.
[¶5] On February 6, 2022, Mother, based on the subsequent charging information, was allegedly in possession of a stolen vehicle. She had an interaction with Patrolman T. Kempton during which she identified herself as "Amanda Elliott" and "became irate and shouted comments about her lawyer and Patrolman Kempton stealing her money." (App. Vol. II at 60.) After Patrolman Kempton arrested her, Mother identified herself as [J.P.]. Based thereon, the State charged Mother with Level 6 felony auto theft, Level 6 felony identity deception, and Class A misdemeanor resisting law enforcement.
Ind. Code § 35-43-5-305(a).
[¶6] On March 6, 2022, during a hearing in one of her criminal cases, Mother was allegedly "upset and yelling in the courtroom." (Ex. Vol. I at 67.) The trial court asked Mother "to quit talking so he could conduct court business" but she continued "yelling loudly and being disorderly." (Id.) When she refused to be quiet, the trial court ordered Mother to leave the courtroom. After leaving the courtroom, Mother continued to yell and be disruptive. Court Security Deputy Richard Underhill warned Mother three times to "quit yelling and disrupting the courts, as she could be heard throughout the whole Courthouse." (Id.) When Mother refused to do so, Deputy Underhill placed her under arrest. The State subsequently charged Mother with Class B misdemeanor disorderly conduct.
[¶7] Mother appealed Children's adjudication as CHINS. Matter of B.P., 190 N.E.3d 995 (Ind.Ct.App. 2022). She argued DCS did not present sufficient evidence Children were CHINS because the trial court did not find Mother's mental health issues endangered Children or Children's needs were unmet. Id. at 1000. A divided panel of this court agreed and reversed Children's CHINS adjudication because the trial court did not make a finding that Mother's mental illness seriously impaired her ability to care for Children or seriously endangered Children or that Children's needs were unmet because of Mother's mental illness. Id. at 1003. That opinion was certified on August 26, 2022.
[¶8] On August 8, 2022, DCS filed a new CHINS petition ("2022 CHINS Petition") regarding Children. It noted the procedural history of the 2021 CHINS Petition and alleged Children were CHINS based on Mother's arrests in February 2022, Mother's consistently inappropriate behavior in court, and Mother's alleged mental illness. The trial court held an initial and detention hearing on August 15, 2022, during which Mother orally moved to dismiss the petitions. Mother argued the case should be dismissed because
there is an open case that is still running it's [sic] course, there's still a chance of DCS filing a [transfer?}. We believe this case to be premature. Further that if DCS were going to pursue the issues they brought up in this case a new filing before the other one, was not certified, I don't believe that to be a proper course. A proper course would be to move to reopen the other case.
(Tr. Vol. II at 9-10) (errors in original). Mother also argued the trial court should grant her motion to
dismiss based on res judicata in that we believe that facts alleged in the new position, of the new petition are facts that basically could have been covered or were covered in a (indiscernible). Obviously, there are new allegations, but the types are [sic] allegations were things covered in the previous petition. Obviously, the law in the State of Indiana, while DCS is entitled to file a new petition they are not entitled to continually relitigate issues that they could have brought up in the original petition.(Id. At 11-2.)
[¶9] The trial court denied Mother's motion to dismiss, stating:
As to the argument that these new CHINS petitions cannot be filed because of the previous CHINS cases that have been appealed, there is no merit. The majority opinion in the appeal [of this case] specifically states: "Of course, if new facts arise that would support a CHINS determination in the future, a more stringent and coercive intervention may be required." The court will limit the evidence presented in today's hearing to events occurring since the fact finding on the previous CHINS cases.
As the argument for dismissal based upon Res Judicata, there is likewise no merit. These new CHINS petitions allege facts and events occurring since the previous fact finding held on July 26, 2021.
(App. Vol. II at 72-3.)
[¶10] On August 26, 2022, DCS filed a motion asking the trial court to order Mother to undergo a psychological examination. Therein, DCS noted:
7. Clinical Psychologist, Don A. Olive, met with [Mother] on three occasions since the previous fact-finding. Dr. Olive met with [Mother] in August of 2021, February of 2022, and most recently in the Shelby County Jail on June 14, 2022. Dr. Olive's most recent meeting was to conduct a competency evaluation under order of Judge Matthew D. Bailey for an evaluation in cases pending in Judge Baily's [sic] court under cause numbers 16D01-2106-F6-558 and 16D01-2107-F6-67. As to this recent meeting in June 2022, Psychologist Olive reported to Judge Bailey that due to [Mother's] screaming at him that he could not complete an evaluation, but that he did review recent jail records and found [Mother] to be agitated, disorganized, delusional, combative, and uncooperative. Further that [Mother] has consistently refused psychotropic medication. Dr. Olive further noted that [Mother's] diagnostic history includes Bipolar I
Disorder, Manic, Severe, with Psychosis, Stimulant Use Disorder, and Cannabis Use Disorder.
8. In [Mother's] criminal cases there is a genuine controversy as to wether [sic] she lacks the ability to understand the proceedings and assist counsel at trial.(Id. at 78.) DCS argued "[a] relevant issue in this CHINS case is: Would [Children's] physical or mental condition be seriously impaired or seriously endangered as a result of Mother's inability to supply [Children] with necessary food, clothing, shelter, medical care, education, or supervision due to [Mother's] mental condition." (Id. at 78.) DCS requested "a hearing to determine if a mental examination of [Mother] is relevant to issues genuinely in controversy in this case and if so, to order a mental examination of [Mother] by a psychologist." (Id.)
[¶11] The trial court held a hearing on September 12, 2022, to address DCS's request. During that hearing, Mother interrupted the court multiple times, yelled, called the judge a "son of a b*tch[,]" and hit a table in the courtroom. (Tr. Vol. II at 203.) The trial court eventually asked court officers to "[p]lease remove [Mother] from the court room. She's being too disruptive for us to carry on these proceedings." (Id. at 207.) As officers removed her from the courtroom, she told one officer to "F*ck off." (Id. at 208.)
[¶12] The hearing continued after Mother's removal. To support its motion to require Mother to undergo a psychological examination pursuant to Indiana Trial Rule 35, DCS presented exhibits regarding the two prior psychological examinations of Mother - one in 2015 and one in April 2022, which was conducted to determine Mother's competency to stand trial in a criminal case. DCS also called to the trial court's attention Dr. Olive's earlier report regarding Mother's behavior during Dr. Olive's three visits with her in jail, specifically that she appeared "consistently agitated, disorganized, delusional, combative and uncooperative." (Id. at 212.)
[¶13] Mother's counsel objected to a psychological examination because Mother felt like "it['s] a violation of her medical privacy" and "she should not have to do it[.]" (Id. at 214.) Mother's counsel further argued Mother had recently "become more lucid" and was no longer "talking about aliens." (Id.) He stated, "at the end of the day it is a Child in Need of Services case. And the question comes down to can she parent her kids and I'm not sure a psych [sic] evaluation is going to help us determine that." (Id.) At the end of the hearing, the trial court stated:
Based on, based on what has been presented here today, and again in light of the reports that have been filed, the reports previously been filed and very importantly in light of the Court's own observations in this case is, it is abundantly clear to the Court that [Mother] suffers from some extreme mental health condition. Whatever the cause of that, I can't know, but it's very clear to the Court that as of today she does suffer from an extreme mental health condition and/or disorder and again, I have noted that personally just by way of, of her constant interruptions, her rambling discourses, her profanity, her, her yelling and screaming in the court room. Her disrupt, her disruptive manner basically her agitated state. Pri (sic) her own acknowledgements of suffering from mental health issues
including prior to PTSD, PTSD determinations, there's reference to, at least there was no talk today of her, of aliens by [Mother] today but that doesn't give the Court any, any great comfort, if you will. She's uncooperated (sic), uncooperative. She's unable to conform herself to any kind of reasonable, um, behavior in the Court. Again, she's agitated, disorganized and at times almost delusional. And again, I've noted that today as in the past she's totally dominated the proceedings.... I will find that good cause does exists for this examination and specifically note, I do understand that such an examination is intrusion in some manner, however that is the very issue in controversy in this case. Essentially the DCS's position as I understand it, the posi (sic), the, their petition is that the, the health, the safety and the wellbeing of [Children]; their physical health, safety well-being and probably even more their emotional and mental health, safety and well-being, their position is that is impacted by [Mother's] own extreme conditions. That is the very point that is in controversy in this case. That is all to say the Court is going to grant the Motion for Mental Health Examination, specifically order that [Mother] submit to such an examination.(Id. at 215-6) (errors in original). On September 13, 2022, the trial court issued its order granting DCS's motion for a psychological examination and ordered Mother to undergo the examination on September 16, 2022. The record does not indicate whether Mother attended the September 16, 2022, appointment.
[¶14] On September 22, 2022, Mother asked the trial court to certify for interlocutory appeal its August 24, 2022, and September 13, 2022, orders relevant to the denial of her motion to dismiss and the grant of DCS's request that Mother undergo a psychological examination. On September 22, 2022, DCS filed its response and did not object to certifying those orders for interlocutory appeal. On September 30, 2022, the trial court certified its August 24, 2022, and September 13, 2022, orders for interlocutory appeal. On November 4, 2022, we accepted jurisdiction of Mother's interlocutory appeal.
Discussion and Decision
1. Res Judicata
[¶15] Mother argues the trial court erred when it denied her motion to dismiss the 2022 CHINS Petition because res judicata precluded the trial court's consideration of the petition. As our Indiana Supreme Court explained in Matter of Eq.W.:
Generally speaking, res judicata operates "to prevent repetitious litigation of disputes that are essentially the same, by holding a prior final judgment binding against both the original parties and their privies." This doctrine applies "where there has been a final adjudication on the merits of the same issue between the same parties." Similar to double jeopardy in the criminal context, res judicata operates to prevent a party from receiving the proverbial "second bite at the apple."124 N.E.3d 1201, 1208-9 (Ind. 2019) (internal citations omitted). There are two forms of res judicata, claim preclusion and issue preclusion. Hilliard v. Jacobs, 957 N.E.2d 1043, 1046 (Ind.Ct.App. 2011), reh'g denied, trans. denied, cert. denied, 568 U.S. 998 (2012).
[¶16] Claim preclusion bars a subsequent action if the matter was or might have been litigated and decided in a prior action. Angelopoulos v. Angelopoulos, 2 N.E.3d 688, 696 (Ind.Ct.App. 2013), trans. denied. A party arguing that a suit is barred by claim preclusion must prove the following four elements:
(1) the former judgment must have been rendered by a court of competent jurisdiction; (2) the former judgment must have been rendered on the merits; (3) the matter now in issue was, or could have been, determined in the prior action; and (4) the controversy adjudicated in the former action must have been between the parties to the present suit or their privies.Id. Mother contends the 2022 CHINS petition is barred by claim preclusion because the allegations set forth in that petition "are nothing more than old allegations repackaged." (Br. of Appellant at 26.) She likens the matter before us to those examined in Matter of Eq.W. and In re R.L., 144 N.E.3d 686 (Ind. 2020).
Mother also argues
DCS incorrectly used July 26, 2021, the date of the factfinding hearing in the prior CHINS proceedings, as the date upon which the last judgment was final. That was not the date the judgment on the merits was final. Rather, it was the date upon which this Court certified its opinion as final, or August 26, 2022. None of the allegations in the current CHINS petition occurred after that date.(Appellant's Br. at 26.) However, she cites no precedent or statute to support this assertion, and thus is it waived for failure to cite authority and failure to make a cogent argument pursuant to Indiana Appellate Rule 46(A)(8)(a). See In re A.G., 6 N.E.3d 952, 957 (Ind.Ct.App. 2014) (failure to cite authority results in lack of cogent argument prompting waiver). Moreover, the discussion in Matter of Eq.W. makes clear that whether a matter could have been determined in the prior action is determined by the date of the fact-finding hearing in the prior action. See Matter of Eq.W., 124 N.E.3d at 1211 (noting new petition did not contain "additional allegations that would have occurred after the . . . fact-finding hearing on the first petition").
[¶17] In Matter of Eq.W., DCS filed a petition that alleged the parents' five children were CHINS based on parents' alleged substance abuse. 124 N.E.3d at 1205. Because DCS did not present sufficient evidence of parents' alleged substance abuse, the trial court dismissed the case with prejudice. Id. One day later, DCS filed a new petition alleging the children were CHINS and "containing nearly identical allegations[.]" Id. After a fact-finding hearing regarding the new petition, the trial court adjudicated the children as CHINS. Id.
[¶18] The parents appealed, arguing claim preclusion barred "a repeated filing of a CHINS petition based on evidence that could have been produced in the first filing." Id. Our Indiana Supreme Court's analysis focused on whether claim preclusion applied to CHINS cases. Id. at 1210. The Court stated, "Indiana places extra emphasis on [CHINS] proceedings and urges parties to cautiously and meticulously move through each stages of a CHINS proceeding." Id. The Court noted while there often exists a situation in which past parental behavior is relevant to the determination of a CHINS adjudication, "we also think that this procedure is ripe for potential abuse by the State." Id. at 1211. The Court then balanced the interests of the State in protecting children and the parents' interest in avoiding separation from their children:
Here, DCS filed its first petition alleging the Children were CHINS on June 27, 2017. Distilled to its essential material facts, the petition was based on Mother and Father's alleged impairment, prior DCS involvement due to substance abuse, and Parents' ultimate arrest while several of the Children were in their presence. Because DCS's motion to present telephonic testimony of Parents' drug screen results was denied and because DCS apparently presented no other evidence to the court, the first petition was dismissed for the State's failure to meet its burden of proof. The very next day, DCS filed its second petition that contained no additional allegations that would have
occurred after the October 25, 2017, fact-finding hearing on the first petition.
To us, this case screams out as an obvious "second bite at the apple." The fact of the matter is that DCS failed to present sufficient evidence to meet its burden of proof on the first go-round. While the record is unclear as to why the trial court allowed the second petition to be filed, the court specifically denied Mother's request for dismissal with prejudice and noted that the allegations of the first petition could be combined with future allegations as evidence of the need for coercive court intervention. DCS plainly failed to follow this instruction and filed a second petition with essentially the same allegations as its first petition. While we understand the pressures placed on DCS to protect the safety and well-being of children in our state, we can in no way endorse the procedural tactics employed in this case to essentially string out the CHINS proceeding until enough evidence was collected, all the while keeping the children separated from their parents. There is simply too much at stake to condone these actions.Id. at 1211. While our Indiana Supreme Court did not reverse the CHINS adjudication because the issue was not properly before the Court, it held, as a matter of first impression, that res judicata applied to CHINS cases:
We extend this basic principle to these proceedings in large part because of the heightened due process protections we give to children and parents involved in CHINS proceedings. For example, invocation of this doctrine 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.
[¶19] In R.L., our Indiana Supreme Court applied its holding in Matter of Eq.W. to a new set of facts. 144 N.E.3d at 690-2. DCS had filed a petition alleging R.L. was a CHINS based, in part, on a separate CHINS case involving parents' other child, the mother's alleged anger issues, and parents' alleged inability to demonstrate they understood how to properly care for R.L. Id. at 687. After a fact-finding hearing, the trial court determined R.L. was not a CHINS and dismissed the CHINS petition with prejudice. Id. One day later, DCS filed a second CHINS petition alleging R.L. was a CHINS based on some of the same reasons alleged in the earlier petition and other reasons not included in the earlier petition. Id. at 688. The mother moved to dismiss the second petition on claim preclusion grounds. The trial court denied her motion and adjudicated R.L. as a CHINS. Id.
[¶20] The mother appealed, again arguing claim preclusion barred DCS from filing the second petition because "the matters alleged in the second petition were or could have been litigated in the first petition and any new allegations of fact in the second petition were not material." Id. at 689. Our Indiana Supreme Court examined its holding in Matter of Eq.W. as well as decisions in other jurisdictions. Id. at 690. The Court reversed R.L.'s adjudication as a CHINS because, in part,
the second petition largely duplicated allegations or relied on matters that could have been determined in the first petition. These included allegations that Mother was currently involved in a separate CHINS action with her other child, that services had not been completed in that case, that Mother failed to follow through with treatment after a psychological evaluation, and that Mother and Father had a tempestuous relationship. To be sure, these are serious allegations, but DCS failed to carry its burden in the first petition, which ultimately led to dismissal with prejudice.Id. at 691. Our Indiana Supreme Court concluded:
Matter of Eq.W. sought to prevent the type of piecemeal litigation that occurred in this case. The subsequent petition was largely duplicative of the first and enunciated three new, weakly supported allegations.... If there is to be any predictability for parents, children, and the State in these proceedings, we must hold each party properly accountable to their individual responsibilities. Therefore, Mother's motion to dismiss should have been granted because under the framework of Eq.W., the subsequent petition should have been barred by the doctrine of claim preclusion.Id. at 691-2.
[¶21] Despite Mother's arguments alleging similarities, Matter of Eq.W. and R.L. do not apply here. The 2021 CHINS Petition alleged Children were CHINS because
A. [Mother] was placed under arrest and jailed on May 10, 2021.
B. Mother swore and refused to discuss the care of [Children] when DCS interviewed her in jail.
C. [Children] had no adult supervision and electricity in the home had been disconnected.
C. Mother remains in jail at the time of the filing of this petition.
d. Mother appears to have untreated mental problems.
(Prior Appeal App. Vol. II at 29) (errors in original). The 2022 CHINS Petition alleged:
5. All facts alleged in this petition occurred after the July 26, 2021, CHINS fact-finding. In the year that passed since the July 26, 2021, fact-finding, [Mother] has demonstrated by her words and actions that she is unable to provide necessary care and supervision of [Children].
6. On February 6, 2022, [Mother] told Shelbyville Police Patrolman T. Kempton, that her name was Amanda Elliott. She became irate and shouted comments about her lawyer and Patrolman Kempton stealing her money. After being placed in handcuffs, she stated her name was [J.P.].
7. [Mother] was charged under cause number 73D02-2202-F6-36 with count [I] Auto theft, Count II Identity Deception, and Count III Resisting/Fleeing From a Police Officer.
8. On February 8, 2022, [Mother] appeared [] via video for an Initial Hearing under cause number 73D02-2202-F6-36. The Court terminated the hearing due to [Mother's] behavior and language.
9. On March 10, 2022, [Mother] was charged under cause number 16D01-2203-CM-259 with Disorderly Conduct when she
was warned three time[s] but would not stop yelling in the Decatur County Courthouse.
10. [Mother] currently has the following criminal charges in addition to Disorderly Conduct pending in Decatur County. Battery by Bodily Waste under cause number 16D1-2107-F6-675 and Intimidation two counts, Battery Against a Public Safety Official, and Criminal Trespass under 16D01-2106-F6-558.
11. [On] May 5, 2022, Judge Apsley specifically ordered a psychological evaluation to be done by Dr. Linda McIntire. Mother talked over others including the judge during the hearing and also screamed at the judge using very vulgar terms and was sentenced to 90 days for her contempt of court.
12. Clinical Psychologist, Don A. Olive, met with [Mother] on three occasions since the previous fact-finding. Dr. Olive met with [Mother] in August of 2021, February of 2022, and most recently in the Shelby County Jail on June 14, 2022. Dr. Olives [sic] most recent meeting was to conduct a competency evaluation under order of Judge Matthew D. Bailey for an evaluation in cases pending in Judge Bailys [sic] court under cause numbers 16D01-2106-F6-558 and 16D01-2107-F6-675. As to this recent meeting in June 2022, Psychologist Olive reported to Judge Bailey that due to [Mother] screaming at him that [sic] he could not complete an evaluation, but he did review recent jail records and found [Mother] to be agitated, disorganized, delusional, combative, and uncooperative. Further that [Mother] has consistently refused psychotropic medication. Dr. Olive further noted that [Mother's] diagnostic history includes Bipolar I Disorder, Manic, Severe, with Psychosis, Stimulant Use Disorder, Cannabis Use Disorder.
(App. Vol. II at 60) (citations to the record omitted). While the 2022 CHINS Petition noted the procedural history of the 2021 CHINS Petition proceedings, it did not set forth any of the allegations from the 2021 CHINS Petition.
[¶22] As illustrated, DCS's allegations in the 2022 CHINS Petition, while similar in subject matter, occurred after the July 26, 2021, fact-finding hearing was held regarding the 2021 CHINS Petition and, thus, the allegations in the 2022 CHINS Petition could not have been litigated as part of the case involving the 2021 CHINS Petition. In fact, the allegations of the 2022 CHINS Petition implicitly acknowledged the change in circumstances since the 2021 CHINS Petition, such as the fact that Children were no longer unsupervised in a house without electricity. Therefore, the third element of claim preclusion is not satisfied - the allegations presented in the 2022 CHINS Petition could not have been addressed as part of the 2021 CHINS petition proceedings because they did not exist until after the fact-finding hearing on that matter. Accordingly, we conclude the trial court did not err when it denied Mother's motion to dismiss the 2022 CHINS petition because claim preclusion did not bar the petition. Contra In re R.L., 144 N.E.3d at 692 (holding trial court erred when it denied mother's motion to dismiss based on claim preclusion because DCS's second CHINS petition, which was filed the day after the first CHINS petition was dismissed, contained the same allegations that were in the first CHINS petition).
This case can also be distinguished from Matter of Eq.W. and R.L. based on the time elapsed between the filings of the two CHINS petitions. In Matter of Eq.W. and R.L., the second CHINS petitions were filed the day after the respective trial courts dismissed the first petitions. Herein, the 2022 CHINS Petition was filed over a year after the adjudication of the 2021 CHINS Petition.
2. Psychological Examination
[¶23] Mother argues the trial court abused its discretion when it ordered her to undergo a psychological examination as part of the discovery process prior to the fact-finding hearing on the 2022 CHINS Petition. Our standard of review for discovery matters is well-settled:
The standard of review in discovery issues is an abuse of discretion. Old Indiana Ltd. Liability Co. v. Montano ex rel. Montano, 732 N.E.2d 179, 183 (Ind.Ct.App. 2000), reh'g denied, trans. denied. An abuse of discretion occurs when a trial court reaches a conclusion that is against the logic and natural inferences which can be drawn from the facts and the circumstances before the trial court. Id. Moreover, an abuse of discretion occurs when the trial court misinterprets or misapplies the law. Id.
Our supreme court has held that generally, "parties may obtain discovery regarding any matter relevant to the subject matter involved in the pending action, or which appears reasonably calculated to lead to the discovery of admissible evidence." Id. (quoting Jacob v. Chaplin, 639 N.E.2d 1010, 1012 (Ind. 1994)). Our discovery rules are designed to encourage a liberal discovery procedure, the purposes of which are to provide parties with information essential to the litigation of all relevant issues, to eliminate surprise and to promote settlement, with a minimum of court involvement in the process. Id. (quoting Canfield v. Sandock, 563 N.E.2d 526, 528 (Ind. 1990), reh'g denied).Stuff v. Simmons, 838 N.E.2d 1096, 1099 (Ind.Ct.App. 2005), trans. denied.
[¶24] The trial court granted DCS's motion for psychological examination pursuant to Indiana Trial Rule 35(A), which states:
(A) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
In Stuff, we adopted a test used by the Texas Supreme Court in Coates v. Whittington, 758 S.W.2d 749 (Tex. 1988), reh'g denied, for a trial court to use to determine if an examination under Rule 35 was required. Stuff, 838 N.E.2d at 1104. The trial court's consideration of the issue has three elements:
(1) an examination is relevant to issues that are genuinely in controversy in the case; (2) a party must show a reasonable nexus between the condition in controversy and the examination sought; and (3) a movant must demonstrate that it is not possible to obtain the desired information through means that are less intrusive than a compelled examination.Id.
[¶25] Mother argues she never placed her mental condition into controversy because she "has not disputed the evidence of her mental condition from competency evaluations done recently" and she "has been candid with the court that she suffers from mental illness and has done so for years." (Br. of Appellant at 29.) Regarding the second and third factors, Mother contends DCS did not show good cause for another psychological examination because (1) multiple prior evaluations were already before the trial court and thus no additional examinations were necessary and (2) the information could be obtained through less intrusive means.
[¶26] In her appeal of the CHINS adjudication based on the 2021 CHINS Petition, Mother argued DCS did not present sufficient evidence her mental illness rendered her incapable of parenting Children. See In re B.P., 190 N.E.3d at 1001 ("Mother contends the trial court erred in adjudicating the Children to be CHINS because there was no evidence that the Children were seriously endangered as a result of Mother's mental illness or that the Children's needs were unmet."). We agreed and reversed Children's adjudication because "there is no evidence that the Children's physical or mental health are seriously impaired or seriously endangered as a result of Mother's mental illness." Id. at 1003. Here, Mother's mental condition is still at issue - she has not been recently diagnosed and there is no information regarding how her mental condition impacts her ability to parent Children. Mother has put her mental condition in controversy by challenging the CHINS adjudication in In re B.P. -it was the sole basis for her appeal.
[¶27] Additionally, the idea that a parent's mental condition would impact their ability to parent a child is not a novel consideration in CHINS proceedings. It is often the case that a parent's mental illness impacts their parenting ability and trial courts have adjudicated many children as CHINS because their parents are unable to care for them due to mental illness. See, e.g., Matter of K.P.G., 99 N.E.3d 677, 684 (Ind.Ct.App. 2018) (affirming CHINS adjudication in part because mother's "untreated mental illness left her unable to make critical decisions concerning K.P.G.'s care and treatment"), trans. denied; In re D.F., 83 N.E.3d 789, 797 (Ind.Ct.App. 2017) (affirming CHINS adjudication in part because mother's mental health issues, which she self-medicated with alcohol and marijuana, rendering her unable to parents her children); In re Termination of Parent-Child Relationship of D.D., 804 N.E.2d 258, 261 (Ind.Ct.App. 2004) (CHINS adjudication that led to affirmed termination of parental rights based in part on mother's "mental illness diagnoses and attendant erratic behavior, her failure to follow through with mental health treatment, and her inability to provide a safe consistence nurturing residence and environment for [D.D.], all of which endangers him"), trans. denied. Furthermore, a psychological examination to determine a parent's mental condition and its impact on that parent's ability to parent a child is not a foreign practice - CHINS dispositional decrees routinely require a parent to undergo psychological evaluations. See, e.g., Matter of S.G. v. Indiana Dept. of Child Servs., 67 N.E.3d 1138, 1170 (Ind.Ct.App. 2017) (mother required to complete psychological assessment as part of dispositional order in CHINS case); In re A.H., 913 N.E.2d 303, 305 (Ind.Ct.App. 2009) (requiring parents to complete a psychological assessment as part of the dispositional order); In re J.J., 711 N.E.2d 872, 873 (Ind.Ct.App. 1999) (father required to complete a psychological assessment as part of the court's dispositional order). For Mother to assert her mental health is not in controversy in this case is disingenuous at best.
[¶28] Thus, returning to the factors adopted in Stuff, Mother's mental health is in controversy because it is unclear whether her mental health issues, which have not been recently defined, may seriously impair Mother's ability to care for children or seriously endanger Children. Mother does not explicitly challenge the second factor, as she does not argue a psychological evaluation does not have a nexus with the determination of the status of her mental health and how it may affect her ability to parent Children. As to the third factor, there is no less intrusive way to obtain information about Mother's mental health as it relates to her ability to parent Children than a psychological evaluation. See, e.g., In re J.J., 711 N.E.2d at 875 (affirming trial court's order requiring father to submit to "a psychological evaluation to assess the danger he posed to J.J." because "it was the least restrictive intervention that was still in the child's best interest"). Based thereon, we conclude the trial court did not abuse its discretion when it granted DCS's motion and ordered Mother to undergo a psychological examination. See, e.g., Old Indiana, 732 N.E.2d at 185 (holding mother's mental health, as it related to child's separation anxiety, put mother's mental health in controversy as to warrant an order for psychological examination pursuant to Rule 35), reh'g denied, trans. denied.
Mother completed a competency evaluation in April 2022 as ordered by the trial court in her criminal case. However, nothing in the record indicates that evaluation addressed whether and how Mother's mental conditions impacted her ability to parent Children.
Conclusion
[¶29] The trial court did not err when it denied Mother's motion to dismiss because the allegations set forth in the 2022 CHINS Petition were not barred by claim preclusion. Additionally, the trial court did not abuse its discretion when it granted DCS's motion to require Mother to undergo a psychological examination. Accordingly, we affirm.
[¶30] Affirmed.
Mathias, J., and Bradford, J., concur.