In the Matter of F.S., T.W., M.F., and B.F. (Minor Children) v. Ind. Dept. of Child Services for Crawford County

FILED
May 12 2016, 9:01 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew J. McGovern Gregory F. Zoeller
Anderson, Indiana Attorney General of Indiana
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of F.S., T.W., May 12, 2016
M.F., and B.F. (Minor Children) Court of Appeals Case No.
13A01-1505-JM-363
and
Appeal from the Crawford Circuit
B.S. (Mother), Court
Appellant-Respondent, The Honorable Kenneth Lynn
Lopp, Judge
v.
Trial Court Cause No.
13C01-1503-JM-18
Indiana Department of Child 13C01-1503-JM-19
Services for Crawford County, 13C01-1503-JM-20
Appellee-Petitioner. 13C01-1503-JM-21
Robb, Judge.
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Case Summary and Issue
[1] B.S. (“Mother”) appeals the trial court’s order, based on authority granted by
Indiana Code section 31-33-8-7, compelling her to allow the Crawford County
Department of Child Services (“DCS”) to interview two of her children. She
contends the statute is unconstitutional as applied to her because it allowed the
trial court to compel the interviews based solely on the uncorroborated
accusations of an undisclosed informant, violating her substantive and
procedural due process rights. Concluding the statute as applied in this case
violated Mother’s right to raise her family free from undue interference by the
State, we reverse.
Facts and Procedural History 1
[2] B.S. (“Mother”) is the mother of four children, T.W., F.S., M.F., and B.F. (the
“Children”). D.F. (“Father”) is the father of the two youngest children.
Mother, Father, and all four children live in a trailer in Crawford County. At
the time of the following events, Mother was on probation for a theft
conviction. In addition, the household had a history with the Crawford County
Department of Child Services (“DCS”), including a child in need of services
1
We heard oral argument in Indianapolis on January 20, 2016. We thank counsel for their informative oral
presentations.
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(“CHINS”) case that had been closed in early January of 2015. See Appellant’s
Appendix at 15 (showing prior DCS contacts in 2007, 2011, and 2014).
[3] On March 2, 2015, an unnamed source2 contacted DCS to report possible abuse
or neglect of the Children. Specifically, the caller reported incidents of
domestic violence between Father and Mother occurring in the presence of the
children; daily drug use and possible drug dealing by both Father and Mother;
an unsafe home environment; and multiple school absences by F.S. See id. at
14-15.
[4] Brenda Hogan, a DCS family case manager, initiated an assessment by making
a home visit. Mother and two of the Children were home at the time. Hogan
toured the house and did not see any evidence of drugs or signs of drug use in
Mother. The home was appropriate and the Children appeared healthy and
safe. Hogan’s visit was cut short when she asked Mother to take a drug screen
and Mother declined, indicating she wanted to call her lawyer first. After a
subsequent meeting between Hogan and Mother at Mother’s lawyer’s office,
and after Father completed a drug screen that was clean, the assessment was
classified as unsubstantiated and closed. See Transcript at 30, 33.
[5] On March 17, 2015, an unnamed source contacted DCS twice to report possible
abuse or neglect of the Children. The caller reported Mother and Father use
drugs three times a week and buy drugs in the presence of the Children,
2
It appears the source was known to DCS but was not disclosed to Mother or to the trial court.
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including as recently as the day before. The caller also reported that incidents
of domestic violence between Father and Mother had occurred as recently as
February or March of 2015.3 In response, Hogan initiated a new assessment.
[6] On the same date, the Crawford County Probation Department received an
anonymous tip that Mother was using methamphetamine. James Grizzel, the
county’s chief probation officer, checked the “Pseudo logs” and discovered that
Mother had recently bought the maximum allowable amount of
pseudoephedrine and had done so on a monthly basis going back “at least the
last couple months.” Tr. at 54, 60. Grizzel therefore decided to conduct a
home visit.
[7] Hogan, Grizzel, and a police officer went to Mother’s home together. Mother
refused entry to Hogan, but allowed Grizzel and the officer to enter. Mother,
Father, and three of the Children were home. Grizzel looked around the
home—both inside and out—and although he confiscated alcohol from the
refrigerator and saw dusty roach clips pinned to a bulletin board, he saw no
indications of recent drug use or manufacturing, and neither Mother nor Father
appeared to be under the influence of alcohol or drugs. Father had just had a
drug screen less than a week before, so Grizzel did not request another sample
3
Hogan testified there was a specific allegation that F.S. saw Mother hit Father in the head and that
domestic violence had occurred multiple times. Id. at 25. She further testified there were also allegations that
F.S. had issues with anger and Mother was driving without a driver’s license. Id. None of this appears on
the two March 17 preliminary reports of child abuse or neglect included in the record as Exhibits A and B to
a motion filed by DCS. It appears there may have been a back side or second page to the reports that was not
copied, either as part of the exhibit originally or as part of the appendix later.
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from him, but he did request Mother submit to a drug screen. Mother provided
a urine sample on site but Grizzel rejected it based on color and temperature
and told Mother that she would have to provide a supervised sample at his
office. That screen came back clean. Grizzel described the house as being “in
good shape.” Id. at 58. Based upon what Grizzel and the officer told her about
the condition of Mother, Father, the Children, and the house that day, Hogan
affirmed she was “satisfied that there wasn’t any evidence of drug use in the
house or on [Mother] and that the children were safe.” Id. at 36. In addition,
Hogan testified she had not since “found any evidence to verify any of the
information that was given . . . by this report source.” Id. at 37.
[8] Nonetheless, on March 17, 2015,4 DCS filed a Motion to Control the Conduct
of Mother and Father. The motion noted two reports were received by DCS on
March 17, 2015, “that may constitute an instance of child abuse and/or neglect,
in that there may be substance abuse and domestic violence in the home,” and
further noted that in order for Hogan to complete a thorough assessment, “she
would need an interview with [Mother], [Father], and the children.”
Appellant’s App. at 18-19. DCS requested a hearing be held and, following the
hearing, an order be entered requiring Mother and Father “to comply with an
interview” with DCS. Id. at 19.5 A hearing was originally scheduled for March
4
The motion is actually file-stamped March 16, 2015, but references the March 17 reports to DCS and has a
certificate of service dated March 17, 2015. Appellant’s App. at 18-19.
5
At this time there was already a pending motion to control the conduct of Father, referencing the March 2
report, seeking an order for him to submit to an interview and a drug screen. Id. at 12-13.
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26, and notice was given to both Mother and Father. The hearing was
ultimately not held until April 7, 2015.
[9] In the meantime, an additional report was made to DCS on March 31, 2015.
The caller reported that Father had purchased and used drugs over the
weekend; Mother was using drugs; both were selling drugs from the house;
there were further incidents of domestic violence in the presence of the
Children; and Father had inappropriately disciplined one of the Children. Lana
Tobin, a DCS family case manager, conducted the assessment on this report.
She visited the home on April 1, 2015. Mother, Father, and the three youngest
Children were home; the oldest child was at school. Tobin was able to enter
the home to look around, and she saw the three Children. She was also able to
see the oldest child at a later date. The Children were clean and appropriate
and the home environment appeared safe. She saw no evidence of domestic
violence and no evidence of drug use. Mother did refuse to take a drug screen
at that time, however. Tobin testified that because “one of the main things is
that they are buying and using[,] drug screens would be helpful, . . . but other
than that, I didn’t have any real concerns.” Tr. at 47. During the hearing,
Tobin summarized her visit:
Q: [F]rom what you saw, not only did you not see any evidence
of those [things that were reported], you were satisfied that those
things just weren’t true?
A: Right, I had no evidence at that time.
***
Q: So once again, what we want the Judge to know, not only did
you not see any evidence, the accusations were false from what
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you saw?
A: Correct.
Tr. at 51-52.6
[10] At the hearing on April 7, 2015, Hogan, Tobin, Grizzel, and Mother all
testified. Mother reaffirmed her refusal to consent to the Children being
interviewed by DCS. At the conclusion of the hearing, Mother’s counsel stated
to the court her position supporting the refusal:
First of all, I’ve already mentioned the statute [Ind. Code § 31-33-
8-7] itself. It just says the Court may [grant the motion to
interview the child] . . . . Here’s the problem with this statute,
Judge, it’s like no other thing that we have. In that, I think what
has to be read in the statute is some quantum of evidence for you
to order the children to be interrogated . . . . Once again, I’ll
recognize [DCS’s] interest in protecting kids, but if there’s no
evidence that children need protected, I don’t think you have the
right to [issue the order].
Id. at 68-70. In response, DCS argued:
In this case, [DCS’s] position is that interviewing the children
will best allow us to confirm or deny the allegations that are
contained in these reports. It’s a mischaracterization to say that
these children are going to be interrogated. They are going to be
asked about mommy’s drug use and whether daddy beats them.
They will be asked in an age appropriate manner what is going
6
Mother believes the multiple reports have been made by her sister, who disapproved of Mother’s
relationship with Father. See Tr. at 64 (Mother reading a text message from her sister the day of Tobin’s visit
stating “move away from the trailer and I will quit. I will keep doing it until you move to mom’s. . . . I want
the kids to be safe and they aren’t safe with him, you know that”).
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on in their home. . . . None of this will be, will traumatize the
children and that is why we’re asking that these children be
allowed to be briefly interviewed by [DCS] in order to close out
these allegations and decide whether these are unsubstantiated
reports.
Id. at 72-73.
[11] On April 20, 2015,7 the trial court issued an order granting DCS’s request to
interview the two oldest children.8 The order states only that the court grants
the DCS request “after being duly and sufficiently advised in the premises.” Id.
at 36. At Mother’s request, the trial court allowed her five days to file a Notice
of Appeal, but if she did not do so, DCS was allowed to proceed with the
interviews. Mother timely filed her Notice of Appeal and on May 19, 2015, the
trial court granted her request for a stay pending appeal.
Discussion and Decision
I. Applicable Law
[12] When DCS receives a report of suspected child abuse or neglect, it “shall
initiate an appropriately thorough child protection assessment . . . .” Ind. Code
§ 31-33-8-1(a). “The primary purpose of the assessment is the protection of the
7
The order is actually dated March 20, 2015, but a subsequent nunc pro tunc entry corrected the date.
Appellant’s App. at 36, 37.
8
The trial court issued an order the same day granting DCS’s earlier request to order Father to submit to a
drug screen. Id. at 35.
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child.” Ind. Code § 31-33-8-6. Indiana Code section 31-33-8-7 delineates the
requirements for DCS’s assessment, stating, in its entirety:
(a) The department’s assessment, to the extent that is reasonably
possible, must include the following:
(1) The nature, extent, and cause of the known or suspected
child abuse or neglect.
(2) The identity of the person allegedly responsible for the
child abuse or neglect.
(3) The names and conditions of other children in the home.
(4) An evaluation of the parent, guardian, custodian or person
responsible for the care of the child.
(5) The home environment and the relationship of the child to
the parent, guardian, or custodian or other persons
responsible for the child’s care.
(6) All other data considered pertinent.
(b) The assessment may include the following:
(1) A visit to the child’s home.
(2) An interview with the subject child.
(3) A physical, psychological, or psychiatric examination of
any child in the home.
(c) If:
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(1) admission to the home, the school, or any other place that
the child may be; or
(2) permission of the parent, guardian, custodian, or other
persons responsible for the child for the physical,
psychological, or psychiatric examination;
under subsection (b) cannot be obtained, the juvenile court, upon
good cause shown, shall follow the procedures under IC 31-32-
12.
(d) If a custodial parent, a guardian, or a custodian of a child
refuses to allow the department to interview the child after the
caseworker has attempted to obtain the consent of the custodial
parent, guardian, or custodian to interview the child, the
department may petition a court to order the custodial parent,
guardian, or custodian to make the child available to be
interviewed by the caseworker.
(e) If the court finds that:
(1) a custodial parent, a guardian, or a custodian has been
informed of the hearing on a petition described under
subsection (d); and
(2) the department has made reasonable and unsuccessful
efforts to obtain the consent of the custodial parent, guardian,
or custodian to interview the child;
the court shall specify in the order the efforts the department
made to obtain the consent of the custodial parent, guardian, or
custodian and may grant the motion to interview the child, either with
or without the custodial parent, guardian, or custodian being
present.
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(Emphasis added.) Upon completion of an assessment, the initial report shall
be classified as substantiated or unsubstantiated. Ind. Code § 31-33-8-12.
[13] A petition seeking to order a parent to make a child available for an interview
by DCS is also governed by Indiana Code chapter 31-32-13, which addresses
juvenile court procedures generally and the issuance of orders specifically. A
juvenile court may issue an order “to control the conduct of any person in
relation to the child” upon the motion of, among others, a caseworker or the
attorney for DCS. Ind. Code § 31-32-13-1(1). The juvenile court must give
notice to any person whose conduct will be regulated by such an order to
appear at a specific date and time for a hearing. Ind. Code § 31-32-13-3; see also
Ind. Code § 31-33-8-7(e)(1). “The court shall issue an order under section 1 of
this chapter if the court finds that good cause to issue the order is shown upon
the record.” Ind. Code § 31-32-13-4. An order issued under chapter 31-32-13
remains in effect for one year, although it may be extended for additional one
year periods upon an annual review, or may be modified or dissolved at any
time upon a showing that the original circumstances of the order have changed
or new circumstances have developed. Ind. Code § 31-32-13-6.
II. Is Mother’s Appeal Moot?
[14] As a threshold issue, the State argues we should dismiss this appeal as moot.
At Mother’s request, the trial court stayed its order compelling her to submit the
Children to a DCS interview pending the outcome of this appeal. In its Brief of
Appellee, the State alleged it had learned Mother was arrested on July 18, 2015,
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after testing positive for methamphetamine and amphetamine, and she signed a
consent for DCS to interview the children on that date. The Children were
adjudicated CHINS on September 17, 2015, after Mother admitted that due to
her arrest, she was incarcerated and unable to provide care and supervision of
the Children.9 The State filed an Appendix of Appellee with documents
allegedly supporting these statements. Based on these events occurring
subsequent to the filing of this appeal, the State asserts Mother has now
consented to DCS interviews with the Children, and accordingly, the very
action she challenges in this appeal has presumably already taken place. The
State requests this appeal be dismissed because there is no relief we can grant to
Mother.
[15] An appeal or issue is deemed moot when no effective relief can be rendered to
the parties before the court. DeSalle v. Gentry, 818 N.E.2d 40, 48-49 (Ind. Ct.
App. 2004). When the controversy at issue has been disposed of in a manner
that renders it unnecessary to decide the question presented, the case will
usually be dismissed. Id. at 49.10 However, Indiana courts have long
recognized that a moot case may nevertheless be decided on its merits under an
9
The State also noted it had advised Mother’s appellate counsel of these developments when it became
aware of them shortly before filing its brief. Mother’s appellate counsel had not been alerted by Mother’s
trial counsel or the trial court of these events and learned of them for the first time from the State. See Reply
Brief of Appellant at 3 n.1.
10
Our supreme court has noted that although Article III of the United States Constitution “limits the
jurisdiction of federal courts to actual cases and controversies, the Indiana Constitution does not contain any
similar restraint.” In re Lawrance, 579 N.E.2d 32, 37 (Ind. 1991). Therefore, while moot cases are usually
dismissed, they are not required to be dismissed.
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exception to the general rule when the case involves questions of “great public
interest.” C.L.Y. v. State, 816 N.E.2d 894, 900 (Ind. Ct. App. 2004), trans.
denied. Cases falling within the public interest exception typically contain issues
likely to recur. C.T.S. v. State, 781 N.E.2d 1193, 1198 (Ind. Ct. App. 2003),
trans. denied. In addition, an appeal may be heard which might otherwise be
dismissed as moot where leaving the judgment undisturbed might lead to
negative collateral consequences. Hamed v. State, 852 N.E.2d 619, 622 (Ind. Ct.
App. 2006). This is because “it is far better to eliminate the source of a
potential legal disability than to require the citizen to suffer the possibly
unjustified consequence of the disability itself for an indefinite period of time.”
In re Marriage of Stariha, 509 N.E.2d 1117, 1123 (Ind. Ct. App. 1987) (quoting
Sibron v. New York, 392 U.S. 40, 57 (1968)).
[16] Mother contends we should address the merits of this appeal. First, she notes
the document on which the State relies to prove Mother consented to an
interview with the Children is not a proper part of the record on appeal and
should not be considered.11 Although it is generally true that we may not
consider matters outside the record on appeal, Schaefer v. Kumar, 804 N.E.2d
184, 187 n.3 (Ind. Ct. App. 2004), trans. denied, we have also noted that the
11
Indiana Appellate Rule 2(E) defines the “Clerk’s Record” to consist of “the Chronological Case Summary
(CCS) and all papers, pleadings, documents, orders, judgments, and other materials filed in the trial court . . .
or listed in the CCS.” Rule 2(L) defines the “Record on Appeal” to consist of the Clerk’s Record “and all
proceedings before the trial court . . . whether or not transcribed or transmitted to the Court on Appeal.”
Mother notes that the “Consent of Parent, Guardian, or Custodian to Interview Child(ren)” submitted by the
State does not contain a cause number linking it to these cases and does not appear to have been filed in the
trial court, as it bears no file stamp and does not appear in the CCS for these cases. See App. of Appellee at 1.
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parties should inform the appellate court “of a post-judgment change in
circumstances which might render a pending appeal moot,” Cunningham v.
Hiles, 402 N.E.2d 17, 20 (Ind. Ct. App. 1980) (opinion on reh’g).
[17] Nonetheless, even if we accept the State’s additional evidence, we decline the
State’s invitation to dismiss the case as moot and agree with Mother that this
case involves a matter of constitutional proportions and is of great public
interest.12 Mother’s claim of constitutional infringement on her right to raise
her children rests on the premise that Indiana Code section 31-33-8-7 allows the
trial court to compel any objecting parent to make his or her child available to
DCS for an interview without any evidence that such an interview is necessary.
Mother contends the same or similar thing may happen to other parents and is
likely to evade review. The trial court in this case granted a stay to allow
Mother to appeal its order, but time is often of the essence in cases dealing with
possible threats to the welfare of children, and a stay in each case to allow for
individual review is not a certainty.13 Although a reversal might not afford
12
Mother also claimed the appeal should be considered because of possible negative collateral consequences
given that the order remained in effect for a year after issuance and could be used to compel further
interviews with the Children. See Reply Br. of Appellant at 4-5; see also Ind. Code § 31-32-13-6. After the oral
argument in this case, Mother filed a Notice to the Court informing us that on January 19, 2016, the day
before oral argument, the State had filed in the trial court a motion to dismiss this cause and the trial court
had granted the motion on January 21, 2016. Generally, once an appeal is perfected, the trial court loses
jurisdiction over the case and orders issued by the trial court thereafter are void. In re N.H., 866 N.E.2d 314,
317 n.3 (Ind. Ct. App. 2007). The trial court’s order, going to the heart of the issue before us, is void and of
no effect, Crider v. Crider, 15 N.E.3d 1042, 1064 (Ind. Ct. App. 2014), trans. denied, and therefore does not
impact our decision.
13
A similar case, discussed in greater detail below, has been before this court within the past three years. In
re A.H., 992 N.E.2d 960 (Ind. Ct. App. 2013), trans. denied. In that case, the trial court entered an order
compelling the mother to produce her children for an interview with DCS within ten days and denied the
mother’s request for a stay pending appeal. Judge Riley, writing in dissent and noting the trial court denied a
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Mother any relief given subsequent events, a decision on the merits will offer
direction to courts in future cases where DCS seeks an order compelling an
interview.
III. Is Section 31-33-8-7 Unconstitutional as Applied?
A. Standard of Review
[18] The Fourteenth Amendment guarantees both procedural and substantive due
process rights. McIntosh v. Melroe Co., a Div. of Clark Equip. Co., 729 N.E.2d 972,
975 (Ind. 2000). Procedural due process ensures that a party will be given
notice and an opportunity to be heard at a meaningful time and in a meaningful
manner. Id. To determine whether a constitutional violation has occurred, we
ask what process was provided and whether it was constitutionally adequate.
Zinermon v. Burch, 494 U.S. 113, 126 (1990). Substantive due process “declares
some actions so outlandish that they cannot be accomplished by any
procedure.” McIntosh, 729 N.E.2d at 975. It ensures that state action is not
arbitrary or capricious regardless of the procedures used. Honeycutt v. Ong, 806
N.E.2d 52, 58 (Ind. Ct. App. 2004). “An arbitrary and capricious decision is
one which is patently unreasonable. It is made without consideration of the
facts and in total disregard of the circumstances and lacks any basis which
might lead a reasonable person to the same conclusion.” City of Indianapolis v.
stay, concluded in the absence of any evidence to the contrary that the children had already been interviewed
and would have dismissed the mother’s appeal as moot because no effective relief could be granted. Id. at
968-69.
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Woods, 703 N.E.2d 1087, 1091 (Ind. Ct. App. 1998), trans. denied. To state a
claim for a violation of substantive due process, a party must show that the law
infringes upon a fundamental right or liberty interest deeply rooted in our
nation’s history or that the law does not bear a substantial relation to
permissible state objectives. Washington v. Glucksberg, 521 U.S. 702, 720-21
(1997); N.B. v. Sybinski, 724 N.E.2d 1103, 1112 (Ind. Ct. App. 2000), trans.
denied.
[19] As relevant to this case, the United States Supreme Court has held “the sanctity
of the family” is protected “precisely because the institution of the family is
deeply rooted in this Nation’s history and tradition.” Moore v. City of E.
Cleveland, 431 U.S. 494, 503 (1977). The Due Process Clause therefore protects
freedom of personal choice in family life matters. In re T.H., 856 N.E.2d 1247,
1250 (Ind. Ct. App. 2006); see also E.P. v. Marion Cnty. Office of Family & Children,
653 N.E.2d 1026, 1031 (Ind. Ct. App. 1995) (“Indeed, the courts of this state
have long and consistently held that the right to raise one’s children is essential,
basic, more precious than property rights, and within the protection of the
Fourteenth Amendment . . . .”). This includes a parent’s fundamental right to
raise his or her child without undue interference by the state. In re T.H., 856
N.E.2d at 1250. The right is not unlimited, however, and the State has the
authority under its parens patriae power to intervene when parents neglect,
abuse, or abandon their children. Id.
[20] In general, laws that burden the exercise of a fundamental right receive the
strictest scrutiny. Ind. Dep’t of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643
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N.E.2d 331, 337 (Ind. 1994); see also G.B. v. Dearborn Cnty. Div. of Family &
Children, 754 N.E.2d 1027, 1031 (Ind. Ct. App. 2001) (“Because [Appellants]
have a fundamental right to family integrity, we must strictly construe the
challenged statute.”), trans. denied. Under the strict scrutiny standard, a statute
must serve a compelling state interest and be narrowly tailored to serve that
interest. Crafton v. Gibson, 752 N.E.2d 78, 91 (Ind. Ct. App. 2011).
B. Order on Motion to Interview
[21] Mother does not argue Indiana Code section 31-33-8-7 is unconstitutional on its
face, as she concedes it may be applied constitutionally. See Br. of Appellant at
9. Instead, she argues it is unconstitutional as applied to her, because the trial
court issued an order under the statute compelling her to submit her children for
an interview with DCS without any evidentiary showing of need. In doing so,
she acknowledges this issue has already been decided adversely to her position
by another panel of this court. See id. at 11 (citing A.H., 992 N.E.2d at 966-67).
But she argues this panel should reconsider the holding in A.H., especially in
light of the Seventh Circuit’s decision in Doe v. Heck, 327 F.3d 492 (7th Cir.
2003), and hold that an order compelling an interview under Indiana Code
section 31-33-8-7 can only be issued if there is at least reasonable suspicion of
child neglect or exigent circumstances.
[22] For its part, the State concedes Mother has a fundamental due process right to
raise her children without undue interference by the State. It argues, however,
that the trial court’s application of Indiana Code section 31-33-8-7 did not
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violate Mother’s substantive or procedural due process rights because the trial
court’s order was issued after an evidentiary hearing and was a proper exercise
of the State’s parens patriae power to intervene to protect the welfare of the
children. The State urges us to adopt the reasoning of A.H. and hold the trial
court’s order granting DCS’s petition to interview the Children pursuant to
Indiana Code section 31-33-8-7 did not violate Mother’s due process rights.
[23] The facts of A.H. are very similar to the facts here: DCS received a report the
mother was selling heroin and prescription drugs, was using methamphetamine
and heroin on a daily basis in the presence of her three children, and there were
syringes all around the house. DCS initiated an assessment, and a family case
manager made a home visit. She interviewed the mother, who stated she had
no history of drug use other than prescribed medications. The mother
submitted to a drug screen which came back negative for all drugs except those
she was prescribed, and the case manager observed no signs the mother was
impaired or under the influence of drugs. The case manager walked through
every room in the house and saw no evidence of drug use or dealing. The one
child who was present at the time of the visit appeared healthy, but the case
manager did not speak with him due to his age. The mother indicated the
father of one of her children had made a previous false report to DCS and she
believed he may have done so again. Nonetheless, the case manager indicated
that as part of the assessment, she needed to speak to the two older children,
who were at school at the time of her visit. The mother declined to grant
permission for the case manager to speak with the children. At some point after
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the visit, DCS spoke with the father of one of the mother’s other children, who
reported the mother had a history of drug abuse, but he had not seen her in
months and did not know if she was currently using drugs.
[24] Two weeks after the home visit, DCS filed petitions to interview the two oldest
children. The mother opposed the petitions on due process grounds. At the
hearing, the case manager affirmed she had been trained and had experience in
recognizing signs of daily drug use. When asked if the evidence she observed
during the home visit failed to substantiate the allegations of the report, she
replied that it did, “[a]t that point.” 992 N.E.2d at 962 (alteration in original)
(citation omitted). The trial court acknowledged the mother’s argument about
her fundamental right to direct the upbringing of her children was
“compelling[],” but found DCS also had a compelling interest in protecting the
welfare of children and had no means other than an interview to directly assess
the conditions of the children as directed by statute. Id. at 962-63. The trial
court granted the DCS’ request to interview the children and the mother
appealed. Id. at 963.
[25] The mother argued on appeal that Indiana’s statutory scheme, which permitted
the trial court to order her to surrender her children for an interview in the
absence of evidence demonstrating the children were being abused or neglected,
was contrary to her right to due process. The court recognized that when
determining whether a given procedure affords a litigant proper process, it must
balance three factors: 1) the private interests affected by the proceeding; 2) the
risk of error created by the chosen procedure; and 3) the countervailing
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governmental interest supporting use of the challenged procedure. Id. at 966.
The court noted the mother’s interest in the care, custody, and control of her
children and DCS’s interest in protecting the welfare of the children are both
substantial. Id. However,
[w]hile we recognize the fundamental right of a parent to raise
her child without undue interference by the state, we cannot say
that due process requires DCS to conduct an assessment or a
portion of an assessment in order to obtain information which
would provide a basis supporting the accuracy or reliability of the
report, prior to interviewing the child or children. Indeed, an
interview of the child or children as part of this initial evaluation
may provide the information needed for DCS to classify a report
as substantiated or unsubstantiated. . . . [W]e cannot say that the
risk of error created by the legislature’s chosen procedure in Ind.
Code § 31-33-8-7 or the actions of DCS or the trial court in this
case is substantial or favor reversal in this case.
Id. at 967. Accordingly, the court affirmed the trial court’s order granting the
DCS petition to interview the children. Id. at 968.
[26] Mother argues we should reconsider A.H. because it conflicts with a Seventh
Circuit Court of Appeals opinion holding that child abuse investigators violated
the constitutional rights of a child and his parents when they conducted a
custodial interview of the child without the parents’ consent in the absence of
any evidence giving rise to a reasonable suspicion that the child was being
abused. Heck, 327 F.3d at 524. For several reasons, however, we find it
unnecessary to turn to Heck to resolve the issue before us.
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[27] First, there are significant factual, procedural, and legal distinctions between
Heck and this case which make Heck’s utility for our purposes questionable at
best. Heck originates from Wisconsin. The Heck court summarized the facts as
follows:
Several weeks after learning that administrators of the Greendale
Baptist Church and Academy used corporal punishment as a
form of discipline in primary grade school, caseworkers for the
Bureau of Milwaukee Child Welfare initiated an investigation for
child abuse. Over the objection of the Academy’s principal, and
without a warrant or parental notification or consent, the
caseworkers removed eleven-year-old John Doe Jr. from his
fourth-grade classroom and interviewed him about corporal
punishment that he and other students may have received and
certain family matters. Thereafter, the caseworkers
unsuccessfully attempted to interview John Jr.’s parents and
sister, and threatened to remove the Doe children from their
parents’ custody. The caseworkers also attempted, on a separate
occasion, to interview other students at the Academy, whom
John Jr. had identified as having been spanked, but the principal
at the school flatly refused to grant them access to the children
without a court order or parental consent. The Bureau
eventually ended its investigation due to lack of information, and
the Academy and parents filed suit against three child welfare
caseworkers, in both their individual and official capacities,
alleging that the manner in which they handled the investigation
violated their rights under the Fourth and Fourteenth
Amendments to the United States Constitution.
Id. at 499. Although there are several significant factual differences between
Heck and this case, we mention just two: in Heck, the allegation was that a third
party was abusing the child by using corporal punishment; there was no
allegation that the parents were abusing or neglecting the child other than the
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caseworkers’ belief that they might be “complicit” in the abuse because they
presumably knew of the school’s corporal punishment policy and did not
prevent their child from being spanked. See id. at 502. Here, the reports were
that Mother and Father were themselves abusing and/or neglecting their
Children. Moreover, in Heck, the interview with the child was completed
without his parents’ knowledge, let alone consent; here, Mother had full
knowledge of the desired interview and exercised her prerogative to decline to
give her consent.
[28] Procedurally, the plaintiffs in Heck brought a Section 198314 claim against the
caseworkers, individually and in their official capacities. The defendants
asserted qualified immunity, and the district court granted their motion for
summary judgment. In order to determine whether qualified immunity
shielded the defendants from liability for the plaintiffs’ constitutional claims, the
reviewing court first had to determine whether the facts alleged showed the
conduct by the caseworkers violated a constitutional right at all. Although it
concluded that some of the actions taken by the defendants were
unconstitutional, it also concluded that the defendants were entitled to qualified
immunity and affirmed the district court decision. See id. at 499. Here, we are
addressing the propriety of a trial court’s action in prospectively granting a
14
42 U.S.C. § 1983.
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motion that would allow the caseworkers to conduct an interview rather than
retroactively reviewing actions already taken.
[29] Legally, the statute under which the caseworkers in Heck conducted their
investigation provides that upon receiving a report from which there is reason
to suspect child abuse or neglect, the appropriate agency shall initiate a diligent
investigation to determine if the child is in need of protection and services.
Wis. Stat. § 48.981(3)(c)(1)(a) (1997). Under certain circumstances, “the
investigation shall also include observation or an interview with the child, or
both, and, if possible, an interview with the child’s parents, guardian or legal
custodian.” Wis. Stat. § 48.981(3)(c)(1)(b) (1997).
The agency may contact, observe or interview the child at any
location without permission from the child’s parent, guardian or
legal custodian if necessary to determine if the child is in need of
protection or services, except that the person making the
investigation may enter a child’s dwelling only with permission
from the child’s parent, guardian or legal custodian or after
obtaining a court order to do so.
Id. Mother asserts the Wisconsin statute and the Indiana statute are “identical
in all meaningful, relevant respects” and “cannot be meaningfully
distinguished,” Br. of Appellant at 14, although she does acknowledge a
“significant” difference, id. at 17: Indiana’s statute does not allow DCS to seize
a child and conduct an interview without either parental consent or a court
order, whereas Wisconsin’s statute requires neither. This, the State argues, “is
a very big difference.” Brief of Appellee at 11 n.7. Unlike the statute addressed
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in Heck, the Indiana statute requires notice to the parent and a hearing before a
court order may be issued compelling a parent to make his or her children
available for an interview. See Ind. Code §§ 31-32-13-2 and -3. We agree with
the State that the Wisconsin statute is not similar to Indiana’s statute in any
relevant way, and therefore a decision made under the Wisconsin statute is
inapposite to a decision applying the Indiana statute.
[30] Second, in addition to the dissimilarities between this case and Heck, Seventh
Circuit Court of Appeals cases are not binding on Indiana state courts. Ind.
Dep’t of Pub. Welfare v. Payne, 622 N.E.2d 461, 468 (Ind. 1993) (noting that
“lower federal court decisions may be persuasive but have non-binding
authority on state courts”). Mother acknowledges this, but nonetheless urges us
to consider Heck persuasive authority serving as a basis for “reconsidering”
A.H., which “clearly authorizes a trial court to issue an order under Ind. Code §
31-33-8-7 absent a showing of any evidence by the DCS.” Br. of Appellant at
23. A.H. is a Court of Appeals decision, however, and we do not recognize
horizontal stare decisis in Indiana. See In re C.F., 911 N.E.2d 657, 658 (Ind. Ct.
App. 2009) (stating “each panel of this Court has coequal authority on an
issue”). Therefore, although we are respectful of the panel’s decision in A.H.
and have given consideration to that opinion and its reasoning as we assess the
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facts and circumstances presented by this case, we are not bound by it. See id.
In short, we write upon a clean slate.15
[31] As noted above, parents have a constitutional right to raise their children
without undue interference and the State has a valid, compelling interest in
protecting those same children, though its interest does not rise to the level of a
fundamental right. See In re T.H., 856 N.E.2d at 1250. Essentially, we are
asked to determine what standard of evidence is enough to tip the balance
toward the State’s interest and justify compelling the parent to act in a manner
inconsistent with his or her right to control the family. Mother seeks to impose
a Fourth Amendment-like standard on a court order issued pursuant to Indiana
Code section 31-33-8-7; that is, she asserts such a court order should only be
issued if supported by, if not probable cause, at least reasonable suspicion.
Mother does not claim that the Children cannot be interviewed under any
circumstances; rather, she asserts that an order compelling interviews over her
objection was inappropriate on this record. The State asserts that imposing an
evidentiary threshold of reasonable suspicion or probable cause before an order
15
We also note that the State agreed at oral argument that A.H. did not specifically address this particular
point, that is, what the standard of evidence for an order under section 31-33-8-7 is. See
https://mycourts.in.gov/arguments/default.aspx?id=1898&view=detail (beginning at 24:40).
Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016 Page 25 of 32
compelling an interview can be granted is contrary to good public policy and
would interfere with the State’s interest in protecting the welfare of children. 16
[32] Indiana Code section 31-33-8-1 provides that DCS shall initiate an
“appropriately thorough” assessment of every report of child abuse or neglect it
receives. Ind. Code § 31-33-8-1(a). Such an assessment must include certain
things, Ind. Code § 31-33-8-7(a), and may include an interview with the child,
Ind. Code § 31-33-8-7(b)(2).17 If DCS attempts to obtain the consent of the
parent to conduct an interview with the child and the parent refuses, DCS may
petition the court to order the parent to make the child available. Ind. Code §
31-33-8-7(d). The court may issue such an order, after a hearing, if the court
“finds that good cause to issue the order is shown upon the record.” Ind. Code
§ 31-32-13-4; see also Ind. Code § 31-32-13-1 (providing the court may issue an
order to control the conduct of any person in relation to the child); Ind. Code §
31-33-8-7(e) (providing the court may grant a motion to interview the child).
Because of the distinction between must and may, the legislature cannot have
intended an interview with a child to be a matter of course in every assessment.
See G.E. v. Ind. Dep’t of Child Servs., 29 N.E.3d 769, 771 (Ind. Ct. App. 2015)
(noting the term “may” “ordinarily implies a permissive condition”); State ex rel.
S. Hills Mental Health Ctr., Inc. v. Dubois Cnty., 446 N.E.2d 996, 1001 (Ind. Ct.
16
The State asserted at oral argument that the legislature did not include an evidentiary standard within the
statute for a reason. See https://mycourts.in.gov/arguments/default.aspx?id=1898&view=detail (beginning
at 25:30).
17
See supra Section I.
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Ohio App. 1983) (“The words ‘must’ and ‘shall’ are mandatory terms.”). Rather,
DCS is not required to conduct an interview with a child as part of its
assessment, and the trial court is not required to issue an order allowing an
interview over a parent’s objection. However, the trial court may issue such an
order if DCS shows good cause on the record supporting its request for an
interview.
[33] The motion seeking to compel Mother to submit her children for DCS
interviews states:
Comes now [DCS], and pursuant to Indiana Code § 31-33-8-7
and Indiana Code Chapters 31-32-13, moves the Court for a
hearing on the ability to control the conduct of [Mother] and
[Father] . . ., who refused an interview with the parents and the
children requested by [DCS] regarding an assessment of
allegations of drug abuse and domestic violence. [Mother] and
[Father] need to comply with the request of [DCS] with an
interview and allow the children to be interviewed allowing the
allegations of substance abuse and domestic violence to be
assessed. In support thereof, counsel for [DCS] states as follows:
1. That on March 17, 2015, two additional reports [18] were
received by [DCS] that may constitute an instance of child abuse
and/or neglect, in that there may be substance abuse and
domestic violence in the home . . . .
2. That responsibility for the report was assigned to Family Case
Manager Brenda Hogan after the reports were received in order
to assess the children for potential abuse or neglect.
3. That Brenda Hogan states that in order to complete a
18
The March 2, 2015 report was addressed in the earlier Motion to Control the Conduct of [Father], seeking
an interview and drug screen from Father. Appellant’s App. at 12.
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thorough assessment, she would need an interview with
[Mother], [Father], and the children.
***
5. That an order to control the conduct of [Mother] and [Father]
is necessary to effectuate the goal and mission of [DCS], in order
to protect the children from abuse and neglect.
Appellant’s App. at 18-19.
[34] Good cause is an admittedly imprecise standard. See Newton v. Yates, 170 Ind.
App. 486, 496, 353 N.E.2d 485, 492 (1976) (stating, in the discovery context,
that “[w]hile an exact definition of good cause is somewhat elusive, it is clear
that a mere allegation of need and a summary statement alleging that the
information cannot be obtained from another source will not be sufficient to
surmount a ‘good cause’ hurdle”). Nonetheless, it is the statutory standard
upon which the trial court must base its decision. We are not prepared to say
that a higher evidentiary threshold is constitutionally required to support an
order compelling an interview, as we do not have to under the facts of this case.
As in Newton, DCS cannot merely allege it “needs” to interview a child to
“complete its assessment” and thereby show good cause. Something more is
required, but nothing more was shown in this case.
[35] DCS is statutorily required to assess all reports of child abuse and neglect.
Before an order can be entered overriding a parent’s wishes and subjecting a
child to an interview, however, DCS must show the trial court some evidence
beyond a report from an undisclosed source that neglect or abuse is occurring.
In other words, a report triggers an assessment, but because the assessment is
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not required to include an interview with the child, the report alone does not
allow DCS to conduct such an interview. Rather, if in gathering information
about the items required to be included in an assessment, DCS finds some
evidence supporting the allegations of the report and determines—not as a
matter of course, but as a result of the circumstances of the specific case being
investigated—that an interview is necessary to complete “an appropriately
thorough” assessment, DCS may ask the trial court to order an interview if the
parent does not consent.
[36] There was no such evidence in this case. At the hearing on DCS’s motion,
evidence was presented that four reports of abuse or neglect were made to DCS
against Mother and Father within a month. An additional report implicating
abuse or neglect was made to the probation department during this time. Three
home visits were conducted by three different people as a result of those reports.
Hogan made a visit to the home after the first allegation, during which she saw
no evidence to support the report and classified the report as unsubstantiated.
Grizzel made a visit to the home after the probation department received a
report that Mother was using drugs. He saw no evidence of drug use or
manufacturing in the house, no indication Mother was under the influence of
drugs or alcohol, and Mother passed a drug screen. Hogan accompanied
Grizzel to the home to assess the second and third reports made to DCS, but
was unable to gain access to the home herself. Based upon what Grizzel told
her, however, she was satisfied the children were safe. Nonetheless, DCS filed
its motion to control Mother’s conduct and submit her children to an interview
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after this visit. Tobin visited the home after the fourth report was made. She
also saw no evidence of drug use, found the home environment to be safe and
appropriate, and saw no issues of concern with respect to the children. She
stated that from what she saw, the accusations made in the fourth report were
false. Multiple reports and multiple visits led to the same result: no evidence
supporting an allegation of abuse or neglect.
[37] The State asserted at oral argument that Grizzel’s testimony was sufficient to
support further investigation. Grizzel learned that Mother had been regularly
purchasing the maximum legal amount of pseudoephedrine. Nonetheless,
Mother’s purchases were within legal limits. In Grizzel’s “professional
opinion,” the alcohol he found at Mother’s home was not “old” as she claimed,
but Mother did not exhibit any signs of intoxication. Tr. at 57. Grizzel did not
accept the urine sample Mother provided at the home because of its color and
temperature, but she later provided a supervised sample that tested clean. The
State posits that Mother was being dishonest with Grizzel and it would be
reasonable for the trial court to assume from his testimony, when considering
the totality of the circumstances, that there was probably more going on than
DCS was able to see in its home visits.19 Whether or not it would be reasonable
for the trial court to assume anything from Mother’s interaction with her
probation officer, the “totality of the circumstances” also include repeated
19
The fact that Mother was apparently arrested for a drug-related offense in July of 2015 does not
retroactively show that she was “probably” using drugs and neglecting her children in March of 2015.
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reports that may have been precipitated by ulterior motives, three home visits in
four weeks’ time that uncovered no evidence of drug use or violence in the
home, and testimony from one DCS case manager that not only was there no
evidence that would support the allegations of the report, but that the
allegations were untrue.
[38] The State also asserts that DCS was unable to show any such evidence because it
was unable to interview the children. In this regard, it is important to consider
the nature of the allegations. Here, the primary allegations concerned drug use,
external signs of which would likely be apparent to the trained—and perhaps
untrained—eye. In addition, there were allegations of physical violence
between Mother and Father. Yet no official who interacted with the family saw
evidence of either. There was no drug paraphernalia in or around the house,
there were no visible marks from drug use or bruises from physical altercations,
neither Mother nor Father ever appeared intoxicated or under the influence of
drugs, and both consistently passed drug screens. No probative evidence
supporting the allegations was shown on the record, and accordingly, there was
no good cause to compel interviews with the Children.
[39] As in A.H., we agree the procedure selected by the legislature for assessing
reports of child abuse and compelling interviews with children does not
necessarily violate due process. See 992 N.E.2d at 967. However, when the
procedure is not observed, such as here where DCS did not demonstrate by any
evidence that an interview was necessary for it to carry out its obligation to
investigate reports of child abuse or neglect, the law impermissibly infringes
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upon the parent’s fundamental right to raise her children without undue
interference by the State. Accordingly, we hold the trial court erred in issuing
an order to control Mother’s conduct by compelling her to submit her children
to an interview by DCS.20
Conclusion
[40] The statutes on which DCS based its request to control Mother’s conduct by
compelling her to submit the Children to interviews by DCS require DCS to
show some evidence suggesting abuse or neglect before the trial court may issue
such an order. No such evidence was presented to the trial court in this case,
and the order issued pursuant to Indiana Code section 31-33-8-7 is reversed.
[41] Reversed.
Barnes, J., and Altice, J., concur.
20
This decision does not vitiate any consent Mother gave for the Children to be interviewed following events
subsequent to those specifically at issue herein.
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