Aw Apr-27-t amvtt; Pfge OF INDIANA HAMILTON SUPERIOR COURT NO 1 COUNTY OF TON) CAUSE NO ZQDDI-1001 ZSDOI-1005 ZSDU1-1 O05- IN THE MATTER OF RESPONDENT JOHN BRIEF IN OPEDSITIQN T0 MOTION TO EBM NATQ CHINS CAUSE DF ACTION comes now mp nespgtusnct John Payne, by has fmomey, 1 Mafsttau Pankust am responds 32 Io (he have Ihih Calm :lose (he CHINS cause of autiqn as fottuwsz The cuwt heard argument nn Apnl 25, 2010, (he repnrt and ny DCS 1r1Iha above nause: of adinw DCS is recommending thai the curse be cIused and states amuse masons In as wnuen Progress Repan a 13 page repen. Hetcsnatter, DCS ts referred lo as DCS ut the '5I.ale', The Court indlcawd IIS concern ,uma or not tt must gram Ilte der\1artdIoroI0sure attnis cunts cause of anion, The State contends IhaI we Goult dow not hr-we any discretion as to whether iz can keep the CI-IINS cause nf actin!! ac1I\Ie :Ind fha! YVIIS (JOUR The Respondent, Jann Pam by ms attorney, "agrees we Staies and Cnnfeftds Ula( Itub Cunt( has Met IU BCI i|'t the ?1951 D|1t\e Paynn <>ItIIdrert'e hiss( Interest [Hal the CHINS Danse of SCIIQH VSITIBIG ODEYI and [hill SIBYG N85 A duty Io nrovtde recommended sen/Ines chilrireu. and for excl at llte Petites/uarenns, than Couri right Io deny the SIEIIGS demand fb! CIOSLIFS, bE deattc tht: Cnurf ttum the ducumentatton that has been pmwded Io lt by way of the John Faynes submission, the guurdtan ad |II'em's submIssio|\s. and the evamattons commeted on the parties, that the terms and wndhiuns of (he Di5pL1si!iGrtSI rm! mei and have not suscesstully completed Sent By: LAW 2541Mu; Apr--27711 2 stmi; wage there rs are nn casoa that have been latch up on appeal that conrxarlr the issue at hand mainly because cones: tells us that this com can always act no it sees to orotact the children, and to do what ls lh cttildrEURn`5 This Court has iurisotictiuri tu deny the request 01 UCS tc close the case. The Decree in this case has not been Successfully completed. and the Objectives of the Disposition have not boon met. IC :t1-3449-10 indicates that at me Hearing and in the Decmo the following ratrall be included Sec. 10. ta) The juvenile court shall amornpany the court'o diepositionsl decree with tinctirrgs and urron tho the following. The needs of the child fur marc, trsarrnent, or placement. (2) Tha need for participation by the parent, guardian, or cuetcdlan in the plan of care furthe child. At the specilrc request of DOS. the Court ordered murtiple senrices to oe provided to llre and parents It also required the parents to participate in treatment programs. the purpose ofthe! request was rlotj.l$t to make the parents psrtiurpate and 'dn things", lt was to improve the conditions and circumstances so that the safely and well?being otthe children ls Obtained. Since DCS asked for those to be done, and tho Court acrzepted that and than ordered them, DCS cannot now state that it is okay tn ignore ihose requests. The goal of the request andthe Courts order is to actually accomplish something lt is nnttu make people gv through the motrons and to not actually provide safety and well-oeirig to the children. This is especially true, for example, with the evaluations ofthe parents -- which DCS continues to ignore. even tfrcugh the Court specifically asked DCS as tothetr understanding and their of lrrurortanvse, or lack thereof, to the recommendations rustic by the As mis Coun pointed Out, in Qrderto help the children, and ro try to allevrcta or minimize the daily adverse effects the parents new on enc children, me came ncaa -rn order to try lc the quality ?rmc_qrr rite citrltaren mr me long run/future lc hupetulty protect me so tlwatthey can qrowto be suwsasrul c?ntt?itrutura ood law abiding members of moiety Again It was DCS that motioned the Court for me evaluations to be ordered, and DCS is Ignore the made by the recommendations that are supported by the great quantity of evidence presented to this court and recommendations that have not been rebuttad by any of the panics or DCS. Sent By: LAW OFFICE 2541449; Apr-27-11 3: Page 7 Erogresg report -- gvigw hearing -- pgrmanency Once the Court orders Disposltional Decree, Indlana statute requires that the Court review the progress and status on a regular basis: IC 31-34-21-2 Periodic case review Sec. 2. The case of each child in need of services under the supervision of the department must be reviewed at least once every six (6) months, or more often, if ordered by the court. The first of these periodic se reviews must occur: (1) at least six (6) months after the date of the child's moval from the chiId's parent, guardian, or custodian; or (2) at least six (6) months after the date of the dispositions! decree; whichever comes first. Each periodic case review must be conducted by the juvenile court in a formal court heanng. Report Reguired Once the Court sets a periodic case review, DCS is required to tile a report: IC 31-34-21-3 Progress report required before case review Sec. 3. Before a case review under section 2 of this chapter, the department shall prepare a report in accordance with lC 31-34-22 on the progress made in implementing the dispositlonal decree. Determinations and Findings of the Court ln fact, the requirements for the information included in the report are very detailed and specific. ln fact, indiana statute sets out that this report is designed to give the Court the opportunity to review the report and determine whether or not the objectives ofthe Dispositional Decree have been met. IC 31-34-21-5 Detemrlnatlon; findings Sec. 5. The court shall determine: (1) whether the ghild's gasp plan, seyigs, and placement meet tpe needs apd best interests gf the gljild; (2) whether the department has de reasonable efforts to provide family services; and (3) a projected date for the child's return home, the chiId's adoption placement, the child's emancipation, or the appointment of a legal guardian for the child under section of this chapter. Gent By: LAW OFFICE 2541449; Apr-27-11 3: Page 8 The determination ofthe court und subsection must be based on findings writtgg after consigergtlon pj following: (1) Whether the department, the child, or the child's parent, guardian, or custodian has complled with the case plan. (2) Written documentation cont ining of: (A) the family services that have been offered or provided to the child or the child's parent, guardian, or custodian; (B) the dates during which the family services were offered or provided; and (C) the outcome ap-ping from offering or providing the family services. (3) The extent of the efforts made bythe department to offer and provide family services. (4) The extent tp which the param, guamign, or custodiag [ms enhanced the ability to fulfill parental obligagiops. (5) The extent to which the parent, guardian, or custodian has visited the child, including the re sons for infrequent visitation. (6) The extent to which the parent, guardian, or custodian has cooperated with the department. (7) The child' recovery from any injuries suffered before removal. (8) Whether any additional services are reguired for the child or the child's parent, guardian, or custodian and, it so, the nature of those services. (9) Ihe extent to which the child has peen rehabilitateg, (10) if the child is placed out--of-home, whether the child is in the least restrictive, most family-like setting, and whether the child is placed close to the home of the chiId's parent, guardian, or custodian. (11) Ihe ext ng to which the causes for the child's out--of-home pl cement or supervision have been alleviatgg, (12) placemgpt or supervigipn by the department should be continued. (13) The extent to which the chIld's parent, guardian, or custodian has participated or . has been given the opportunity to participate in case planning, periodic case reviews, disposltional reviews. placement of the child, and visitation. Bent By: LAW OFFICE 2541449; Page 9/14 (14) Whether the department has made reasonable efforts to reunify or preserve a child's family unless reasonable efforts are not required under section 5.6 of this chapter. (15) Whether it is an appropriate time to prepare or implement a permanency plan for the child under section 7.5 of this ch pter. (emphasis added) When The Qase Should Be Closed The purpose ofthe Dispositional Report i to provide recommendations and guidance for the Courts order in the Dlspositional Decree. The Courts Dlspositional Decree and, if also ordered, the Parental Participation Order is to create a treatment pr?gram(s) for the child and parent! parents that will best lead to the outcomes that suggest that the Court intervention is no longer necessary. The purpose of the progress report, especially as a permanenoy plan, is to report on the senrlces offered and available and the "progress" of those services in achieving the goals and objectives of the Dispositional Decree. Therefore, this statute sets out when a case should be closed: IC 31-34-21 -11 Sec. 11. When the juvenile court finds that the objectives of the dispositionel decree have been t, the court shall discharge the child and the child's parent, guardian, or custodi n. (emphasis added) Note that this section does not indicate that whenever DCS moves to close the case, it must be dismissed. DCS has requested dispositional services in the Dispositional Decree. It is for the Coun to determine when the objectives of the Dispositional Decree have been met- not DCS. The fact that most often the Court may agree with DCS and most often the parents may also want the case closed, does not mean that lt has to be dismissed. lt is for the Juvenile Court to determine whether or not the objectives ofthe Dlspositional Decree have been met and in doing so, it must review the progres report and make findings consistent with IC 31-34-21-5 in deciding whether the objectives have been met. ln this case, in spite of overwhelming evidence. not by the reports of DCS or frankly even of Lifeline, Bethany Christian and Aspire, it is clear that the objectives ofthe Dispositional Decree have not been met. The Court heard argument but has not yet heard testimony regarding whether the objectives of the Dispositional Decree have been met as represented by the information contained in the progress report. ln determining whether or not the progress report of DCS demonstrates that the objectives of the dispositional decree have been met, indian statute sets out what information must be available to the Court in making that finding. IC 31 ??34-22-3 of reports and factual sgmmariea of reports Sec. 3. Any report may be admitted into evidence to the extent that the report cont ins evidence of probative value even if the evidence would otherwise be excluded. me ay: rm or Fics tt swarm; t-cg tb) lt a report contains that should nut be released to the child or the or\tId`s parent, guardlart, custodian, cr any ether person who is antitlect to receive a report under section 2 clranler, a factual summary of the may be admitted. rc) The shall he given ferr cclwormrriry to cuntroverr any pan or the report rntu evidence ~es The Court also expressed its conrem about the outcome ef the services offered and provided tu lite lwrrily. ln other words, itthc services have been successful, then Why do the expressed concerns oltlre Court for the crtildrens sl-tart term and long term well being (4) lite gm ch me parent guardian or cumaran has enhanced fulfil obligations Given the nature - -and ithe home the children are currently placed, the uncertainty of the 1 rr iirwt ny? l/till Apr>>Q7 tt lwge lyetlr/een the Iler and the rar? that Ur Ferrar?`S evaluatlun was nut at all by DCS, and conflicts su directly with the contracted Sen/lcs providers, it cannot he atated in any way that the parents have enltanced the to their parental ebltgetinns 4 (8) Whether any additional services are furthe 0; garent guardian nr and lt an the nature of tlguga garvimlea. Clearly the services slated ln the_ ct the parents require additional services. The Court can clearly delineate Frurn thuse evaluations what additional sen/irien may he needed, even it DCE ls nat Interested In them Further, the current situation and Status _The has tu he evidence tnettne eelvlees oftereci to mother, who has been the placement ct the children rar nve months, have nat been adequate to mael their neerbleg and ll ulaurly appeals that the service pr0vlders' efforts have failed to etfeut a consistent change in the mctherkz bchavimr and teward this C0urt's lt ls clear that I number cl the Service pruvinlers have fallen under the rnother `ex spelt her as being A great parent but ignoring all ofthe evidence that demonstrates that she has had a long term chronic pattern Ut neglecting the emutlcnal, educational, and needs or the nhiltlt'en' and cr dning as she ptemaess. including perjury in this Cotlrt. 5. (9) DCS has continually rlesnribed this case as a "suparv?sl?n" matter and they have limited their concern to tna une May zum event. nee te ignore marine meeher on at least Six (6) uccasluns as bythe tzlrildrerl, and as many as 24 occasions as documented has left ine childrar without any adult Sllpervisian for many htlurs at A une Inte the very early The May 19'"r 2c" evantwas the uetalysl, ui slluttld have been, (ul DCS to laetlrr mute abuuttha history ut neglecting the children, such as when (wes round wandering cnunlry melt in the early am hours when ht: was unly two (2) years age. ul leaving alltnur children uhstipenhsecl ter another 24 llmes, lorthe childrens - while under the miners care and custody, er me mothers pmieerien er blalna unto arveryuns else, for in her lifestyle situation aa set out by the guardian nd litem, all nr these events, nt the fathers flaws and failures, anu even more very quaallmnatnle events and decisitlne made by bath parents that have been documented; zhould fall underthe ut zi tallure ul a failure to torrhe well being ofthe children. A peel acts are uvery gnud rndicatlun as tu how they will act in the luture, especially in this case, Wand when the DCS supervision is pulled uultrum under the prceess Ot trying tv help the ll all that is lakes is tara parent tu say 'l wont dn this anymtire'. and the Case should be closed, than what about case cr a battery ?r rneleet or a chile? All parent would have tu say ls 'l w0n't do that anyrn0re" or they have not done that tor awhile and therefore things are how oltay. Aurlreeslng such as substance abuse, domestic vlnlance anger rnanagervlent, not tel the truth, parental elicnatiun, manipulation cl service providers, and neglect are all critical ln attempting to improve it ray i./uv oirlc motto; npr-Qv-ri Mann; Peg the overall ofthe children. According to Dr, Bart Ferrara, the parents riced ac that they can better try to the needo End lni?resi ot true children. This Court has the ilnai suv as to whether or northe needs ofthe children have been met throughout this owns pmee.-write. can do invesligailons, provide services supervise, and make rewmmendeaiuns, but DCS does not Piave the Inherent power' or a Court to decide if and when the needs ofthe children have been or are being met, and will be met forthe long term future. Oilers in these cases the presenting issue is only the trigger or ine ami nor the cause, The purpose ot the dispositions! decree is to address the cause and resolve. in this case that ie not happened 5. (11) The eggerl! to ylfeh gugga for the chl|d'S out-of-homg glggamert or werygran have been arievrgteg. see number me above r. (12) yvnemer ny me aegartrnent should be ie the Ending that must directly addresses the issue before Clie Dorm Trris does refer to the issue or closure. This most directly and oiearry states that the Court Shall make st iinding wneittertne supervision by the Department should he continued Tnia states, in no unequivocal terms; that it Is the Courts responsibilty to whether or not the supervislorr bythe Department should oe ooiitlnued based upon all ofthe factors contained in IC St-34f2t-5 Frankly, the reason there is no ease law on this directly to the point clearly etatestlral it is me Courts determination whether or not supervision should oe continued and not DCS or any other entity for that matter cases. not be left to DCS, to deternnrie or rroteupeivision ehoulol Oli the one hand, the COUR should not micromanngc the case but the Court should cas.: is perfect example ufwhy it is me to monitor aria supervise continue provide supervisory authority I0 make sure that the objectives ot its Dispositional Decree have been met not the The is ck-mr DCS seems deterntirfed to olose this case out and justifies its position by stating that Lhereis a where theme nrattsre Lan be addressed This Court and ervaryorle in ins noirrtroorn knows that the divorce Court is nm set up to supervise and manage allegations of abuse and neglect is wliy (hero is it Juvenile Court. ite case starts out ee a diesulutiun, and inert at swims ia fried, the CHINS takes precedent over me riissuirrmm vi/ny is that? Because our stntutex have been designed so as to establish sl epemsl court setting that can better conoentraie and deal with those issues raised by a proceeding. This D358 iS an nf wny lhe Crluf( and rl0l DCS Slilwlti determine when the obiectives Ofille Dierluelitulral Decree have been mei. The Court has pointed out the multiple IRSSOHS why ther!! I5 uoncem the Well being Ulthe ln this cast: DCS has made referrals to contracted such as Lifeline and Bell\eS\.la Clrl'iSt\arE and and made their Wntitthay Neem to demonstrate now, along with (ns Cass manager Sandy Downs, is that oncetney make a recommendation, in spite evidence that the renomirenrislion mwrong they will not ohango ll. In this case. the cunimoteit t2lr>> Sent By: LAW OFFICE 2541449; Apr-27-11 3: Page 13/14 providers state that everythin is oing well andthe children will be fine under the current circumstances. As the court has pointed out, however, the evidence points just the opposite. And the most telling thing of all is the DCS insists on having this case closed and have chosen to ignor the evaluation of the parents. DCS requested the evalu tions, and they only arranged the evaluation after being specifically instructed to do so months alter they should have done it; and now having received the evaluation DCS pays no attention to its findings and recommendations. instead of concentrating on what is inthe children's long term best interest, it seems that DCS it expedient to and this case, it appears they are worn out by this case, and are tired of having to do the work nead to help the children. Continuing the Courts supervisory responsibility and ultimate decision making power as to what should be and what should not be done as to the ch||dren's best interest, is the only way to protect the Payne children. By granting DcS's demand for closure, that this Court has no discretion to act for the children, this Court would be saying that DCS has inherent judicial powers that surpass the Court's statutory obligation to be the last defense against children being neglected John Payne, believes without any doubt that if he is given oontrovert agy gart of the regort admitteg `rgtg (IC that he can demonstrate that the alleged factual statements contained ln the Progress -?Permananoy Report tiled by will be shown to be so inaccurate that its value and credibility should be given no weight. He further believes that, on hearing the facts to oontrovert the report, the coun accept the recommendations of the evaluations. order significant changes ln the service providers so that these children will have sufficient services to ensure that their safety and well--beIng ls adequately and realistically addressed. it is requested that the Brief previously filed by the Respondent regarding the closure of this action be incorporated by reference herein as if fully set out. As indicated above, there ls no case exactly on point regarding the closure of a for the reasons stated above. The previous Brief was submitted to su gest that if the Court has the authority to not follow the recommendation of the Department in closing or dismissing a Termination of Parental Rights case, then certainly the Court has the authority, particularly with for the reasons stated above, to not close out a CHINS case. If the Court has the authority to force the Department to move forward with a Termination of Parental Rights case, it certainly has th right to ensure that the Department makes appropriate referrals to address the objectives of the Dispositional Decree. And that is particularly true regarding the evaluations that DCS has arbitrarily chosen to ignore. A CHINS cause of action is not an administrative proceeding, it is a judicial proceeding; and ln judicial proceedings the presiding Judge is the only entity that has the authority and almost limitless discretion to do what is in the children's best interest. DCS does not have any inherent statutory power to decide this matter and thereby demand and force this Court to dismiss this CHINS proceeding. WHEREFORE, the Respondent John Payne prays th this Court deny the demand made by DCS to terminate the CHINS proceeding in that John Payne believes that he andthe Respondent. Heather Payne need considerably more assistance with their respectiv ?Sent By: LAW OFFICE 2541449; Apr-27-11 Page 14/14 Issues. need more services for the children so that they have a better chance to and to be safe, for the opportunity to present evidence as to why the DCS Dispositional order, its objectives have not been met, and for all other relief just ln the premises. Respectfully Submitted. l.Marshall Pinkus, No. 5750-49 Attorney for John Payne CEBIIELCATE OF SERWCE hereby certify that a copy of this has been served on all counsel of record by ting same on April 27' 2011 and by first class mailing on or about April 27*, 2011. Sent By: LAW OFFICE 2541449; Apr--27-11 Page 1 CERQQIFIQATE QF QERVEQQ hereby certify that a copy of Respondent, John Pnyne's Brief has been served upon all counsel of record in this cause by this date of April 2011, followed by a mailing. Richards, Boje, Pickering, Benner Becker Attorney, Carl A. Marknvich, P.O. Box 2169 Noblesville, IN. 46061 Fax: 776-6031 Deputy Attorney General, Laura Bowker Indiana Government Center South se Floor 302 W. Washington Street Indianapolis, IN. 46204 Fax: Parker McGuire Attention: Trenna Parker Attorney 23 South Street Suite 900 Noblesville, IN. 46060 Fax: 773-2989 David Pumphrey Attorney 302 N. Alabama Street Indianapolis, IN. 46204 Fax: 687-9707 . I. Marshall Pinkus, Attorney Attorney 5750-49 Page :Er-1 ey: mu ormce zsame; my 27~1 Ffmo A :Mu REPDRT fm LAW 256-11149 Am--21-11 sum mm ump Numgf- ur rn Tyan Pages mme Status aw aamw aw ws 3727 10/fc Emu cm/ver; Aw 27 Huis iozm may native az, an Gunn. xo Lanai Rule 42, a ecpamlc Order mm be =uh1\nm:c1 wivh wah request for relief, his sectinn For Court usage only CODE Emexed by