Kipp v. Wells County Department of Family & Children

751 N.E.2d 293
CourtIndiana Court of Appeals
DecidedJune 20, 2001
DocketNo. 90A02-0102-JV-115
StatusPublished
Cited by2 cases

This text of 751 N.E.2d 293 (Kipp v. Wells County Department of Family & Children) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kipp v. Wells County Department of Family & Children, 751 N.E.2d 293 (Ind. Ct. App. 2001).

Opinion

OPINION

KIRSCH, Judge.

Vieki and Kelly Kipp appeal the portion of the trial court's decision that terminates the wardship of their daughter, M.LK., and orders them to reimburse the Wells County Office of Family and Children (OFC) over $21,000 in costs expended in her care, raising the following issues for review:

1. Whether their due process rights were violated because the notice of the wardship termination hearing did not specify that the subject of reimbursement would be litigated.
II. - Whether the trial court erred in including a statement in the judgment that it was nondischargeable in bankruptey.
Whether the trial court erred in ordering the Kipps to reimburse the OFC without finding that they were able to do so. IIL.

We reverse and remand.

FACTS AND PROCEDURAL HISTORY

MLK. was born on December 10, 1981. In 1997, M.LK. became the subject of a CHINS petition and was made a ward of the OFC. On July 6, 2000, the OFC filed a motion to Dismiss Proceedings and Terminate Wardship based on MLK's marriage.

On August 16, 2000, the trial court held a hearing on the motion, including the Kipps' obligation to reimburse the OFC for the amounts it had expended on M.L.K.'s behalf during her wardship. The trial court entered an order terminating the wardship, directing the Kipps to reimburse the OFC for $21,777.44, and determining that the debt was in the nature of support and maintenance and therefore nondischargeable in bankruptcy. The Kipps now appeal.

DISCUSSION AND DECISION

The Kipps first argue that their due process rights were violated because the notice of the wardship termination hearing that they received did not state that the subject of reimbursement of the OFC's expenses would be litigated. Due process requires notice, an opportunity to [296]*296be heard, and an opportunity to confront witnesses. Turner v. Board of Aviation Comm'rs, 743 N.E.2d 11583, 1169 (Ind.Ct.App.2001). Before an action affecting a party's interest in life, liberty, or property protected by the Due Process Clause of the Fourteenth Amendment proceeds, the State, at a minimum, must provide "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Yoder v. Elithart County Auditor, 682 N.E.2d 369, 372 (Ind.Ct.App.1994) (quoting Mullane v. Central Hanover Bank & Trust Co., 389 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950)). Such notice must reasonably convey the required information to the affected party, must afford a reasonable time for that party to respond, and is constitutionally adequate when the practicalities and peculiarities of the case are reasonably met. Id. Whether notice is reasonable depends on the balance struck between the State interest involved and the constitutionally protected individual interest involved. Id. It is the State's responsibility to strike the proper balance between these conflicting interests. Id.

The OFC argues that because the statute directs the trial court to consider the issue of reimbursement at any hearing, the Kipps were on notice that the issue of reimbursement would be litigated. IC 831-40-1-3 provides:

"(a) A parent or guardian of the estate of a child adjudicated a delinquent child or a child in need of services is financially responsible as provided in this chapter (or IC 31-6-4-18(e) before its repeal) for any services ordered by the court.
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(c) At:
(1) a detention hearing;
(2) a hearing that is held after the payment of costs by a county under section 2 of this chapter (or IC 31-6-4-18(b) before its repeal);
(3) the dispositional hearing; or
(4) lany other hearing to consider modification of a dispositional decree;
the juvenile court shall order the child's parents or the guardian of the child's estate to pay for, or reimburse the county for the cost of, services provided to the child or the parent or guardian unless the court finds that the parent or guardian is unable to pay or that justice would not be served by ordering payment from the parent or guardian."

Although the statute provides for a reimbursement determination at any hearing, we agree with the Kipps that due process requires they receive notice that reimbursement would be litigated at this hearing. The Kipps received notice that the trial court would hold a hearing regarding the OFC's request to terminate the wardship of M.L.K. The apparent reason for the termination was ML.K.'s emancipation by marriage. Thus, the resolution of the wardship issue had little real impact on the Kipps' rights or obligations. Under the cireumstances, the notice of the wardship hearing would not give a reasonable person actual notice that the issue of reimbursement of expenses would be litigated at the hearing. We have written:

"A party is entitled to some notice that an issue is before the court which has not been pleaded or has not been agreed to in a pre-trial order. This is especially true where the new issue is not unequivocally clear by the evidence being submitted. This is not being technical. This is being fair. A party should be given an opportunity to meet the issues which the court is considering."

[297]*297Aldon Builders, Inc. v. Kurland, 152 Ind.App. 570, 580, 284 N.E.2d 826, 882 (1972). Accord Bahre v. Metro. Sch. Dist. of Washington Township, Marion County, 400 N.E.2d 197, 200 (Ind.Ct.App.1980). Accordingly, we hold that the Kipps are entitled to reversal of the trial court's decision against them on this basis. We further note that in other cases in which the county has sought reimbursement, the OFC in question has filed a petition specific to this issue. We believe that this is the preferable procedure and recommend it to the OFC in the future. See, eg., In re the Matter of C.K., 695 N.E.2d 601 (Ind.Ct.App.1998), trans. denied; In re the Matter of J.W. v. Hendricks County Office of Family & Children, 697 N.E.2d 480 (Ind.Ct. App.1998). Although this issue is dis-positive of this appeal, we address the Kipps' other issues because they are likely to recur on remand.

The Kipps next maintain that the trial court erred in including within its order a statement that the judgment against the Kipps was in the nature of support and therefore nondischargeable in bankruptcy. Federal law governs what constitutes a nondischargeable "maintenance or support" obligation. Cowart v. White, 711 N.E.2d 523, 528 (Ind.1999). State courts nonetheless have concurrent jurisdiction to make that determination. Id.

11 USCA § 528(a)(5) states:

"A discharge under section 727, 1141, 1228(a), 1228(b), or 1828(b) of this title does not discharge an individual debtor from any debt-

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Related

E.M. v. State of Indiana (mem. dec.)
Indiana Court of Appeals, 2019
In Re MLK
751 N.E.2d 293 (Indiana Court of Appeals, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
751 N.E.2d 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kipp-v-wells-county-department-of-family-children-indctapp-2001.