Judges say order for DCS interviews with children should not have happened

Scott Roberts for www.theindianalawyer.com

The Indiana Department of Child Services for Crawford County should not have been granted the opportunity to interview two children, the Indiana Court of Appeals ruled, because the order doing so violates their mother’s right to raise her family without undue interference by the state.

The mother has four children. She was on probation for a theft conviction and just had a child in need of services case closed. An unnamed source contacted DCS of Crawford County several times to say the mother and father were doing drugs and there was also domestic violence between the mother and the father. DCS went out to the home a couple of times, once with a police officer, and could not find any evidence of drugs. Also, the children seemed to be well taken care of. Both father and mother eventually completed a drug screen, and both came back clean.

Despite this, DCS filed a motion to control the conduct of mother and father and ordered the family to comply with an interview. The trial court granted an order to interview the two oldest children, and the mother appealed. The trial court stayed the order while the mother appealed.

There was a question of whether this case should be moot, because soon after getting the stay, the mother was arrested after she tested positive for methamphetamine and amphetamine and signed a consent for DCS to interview her children. All the children were adjudicated CHINS. However, the COA said this case can still be decided on the merits because, “Mother’s claims 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.”

In the decision written by Judge Margret Robb, the COA said DCS is required to look into all reports of neglect. However, before an order can be entered overriding a parent’s wishes, DCS must present some evidence beyond a report from an undisclosed source that abuse is occurring. It did not do that in this case.

That state contends that testimony from an officer who investigated the house once during a check was evidence enough as the officer testified the mother had regularly been purchasing the highest legal amount of pseudophedrine. However, those purchases were within the legal limits.

The state also contended it could not show any evidence because it was not able to interview the children. However, the allegations were evidence that should been apparent to the untrained eye, and no one who was in the house during prior investigations noticed anything, the court noted.

The COA reversed the trial court’s decision, finding DCS did not present enough evidence that interviews with the children were needed.

The case is In the Matter of F.S., T.W., M.F., and B.F., and B.S. v. Indiana Department of Child Services for Crawford County, 13A01-1505-JM-363.