In Re: The Matter of A.H., and S.H., Minor Children, V.H., Mother v. Indiana Department of Child Services

Aug 21 2013, 5:25 am
FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

BART M. BETTEAU APRIL F. WILLIAMS-SHAW
Betteau Law Office DCS Local Office in Clark County
New Albany, Indiana Jeffersonville, Indiana

ROBERT J. HENKE
DCS Central Administration
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

IN RE: THE MATTER OF A.H. AND S.H., )
Minor Children, )
)
V.H., Mother, )
)
Appellant-Respondent, )
)
vs. ) No. 10A01-1302-JM-93
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )

APPEAL FROM THE CLARK CIRCUIT COURT
The Honorable Vicki L. Carmichael, Judge
The Honorable William A. Dawkins, Magistrate
Cause Nos. 10C01-1301-JM-14, 10C01-1301-JM-15

August 21, 2013

OPINION - FOR PUBLICATION

BROWN, Judge
 V.H. (“Mother”) appeals the trial court’s order granting Petitions to Interview

Children filed by the Indiana Department of Child Services (“DCS”). Mother raises one

issue, which we revise and restate as whether the court erred in issuing the order. We

affirm.

FACTS AND PROCEDURAL HISTORY

On January 9, 2013, DCS received a report that Mother was using

methamphetamine and heroin on a daily basis when her children, four-year-old K., six-

year-old A.H., and eight-year-old S.H., were present, that Mother was selling prescription

drugs and heroin, and that there were syringes all around the house. Brandy Terry, a

DCS family case manager, reviewed the allegations against Mother on January 10, 2013.

On January 11, 2013, Terry visited Mother at her home, explained to Mother the

nature of the report, observed Mother’s home, and interviewed Mother. Mother stated

that she was not using drugs, methamphetamine, or heroin and that she had prescription

drugs that she was using for health conditions. Mother stated that she had no history of

drug abuse. She submitted to a drug screen, and the results “were that she was negative

for all drugs except those that she was prescribed.” Transcript at 19. Terry asked Mother

to confirm that S.K. was the father of S.H., and Mother did so and then told Terry that

S.K. had made a false allegation to DCS about her in the past and that she believed that

S.K. had made the current report as well. Terry walked through every room of Mother’s

house and did not observe any indication of illicit drug use or sales in the home such as

pills, a pipe, manufacturing equipment, or distinctive odors. Terry also did not observe

any indication that Mother was impaired or under the influence of drugs. Four-year-old

K. was present while Mother was interviewed by Terry, but Terry did not interview the
2
child due to his age, and she observed that K. appeared happy and healthy. Terry asked

Mother to sign a safety plan, and Mother did so, which provided that Mother agreed to

remain sober and drug free while providing care for the children, not to use, sell, or

manufacture illegal drugs, and to take any prescription drugs only as directed.

Terry informed Mother that, as part of the assessment, she needed to speak with

A.H. and S.H., who were in school at the time. She asked for Mother’s permission to

speak with the children; however, Mother did not give permission to speak with them,

stated that she wished to speak with her attorney, and indicated that the children had

“been through a lot of things like this before and . . . [she] did not wish to do any further

damage to the children.” Id. at 48. At some point, Terry also spoke with the father of

A.H., who informed Terry that Mother had a history of drug abuse, that he was not sure if

Mother was currently abusing, and that he had not seen Mother for six to nine months.

On January 14, 2013, Mother called Terry and indicated that she did not want the

children to be interviewed.

On January 25, 2013, DCS filed separate petitions to interview A.H. and S.H. On

February 1, 2013, the court held a hearing on the petitions, at which Mother verbally

moved to dismiss DCS’s petition and the parties presented evidence and arguments.

Mother, by counsel, agreed that Ind. Code § 31-33-8-7 permitted an assessment which

included an interview of the children. However, Mother argued that the statute is

unconstitutional pursuant to the Due Process Clause of the Fourteenth Amendment.

When asked if it was her training and experience to be able to observe if a person uses

methamphetamine and heroin on a daily basis, Terry responded affirmatively, and when

asked whether the evidence she observed during the home visit “not only [did] not []
3
substantiate [the allegations], but that it was a big lie,” Terry answered “[a]t that point.”

Id. at 44. Mother testified that she had reason to believe that S.K. might file a false

accusation against her, that S.K. does not pay his child support and does not have

visitation, and that she is pursuing court action for back child support. At the conclusion

of the hearing, the court took the matter under advisement.

On February 6, 2013, the court entered an Order Granting Request to Interview

Children which provided in part:

[Mother] asserts, compellingly, that her [F]ourteenth Amendment right to
direct the upbringing of her children should outweigh [DCS’s] intrusion
into her life. Certainly, she does have the fundamental right to raise her
child without undue state intervention, but that right is not absolute. Where
significant compelling interests exist, such as protecting the welfare of
children, the state has the power to intervene under its parens patriae
power. This certainly is the mechanism codified in IC § 31-33-8-7(d). As
such, [DCS], by clear statutory authority, must issue a report on the
conditions of the children. In this case, [DCS] has a compelling interest,
and has no other means to directly assess the conditions of these children
without an interview . . . .

Appellant’s Appendix at 17-18. The court required Mother to produce A.H. and S.H. for

interviews within ten days of the order and permitted Mother to be present for the

interviews. Mother filed a motion to stay interview pending appeal, which DCS opposed

and the court denied. Mother now appeals.

ISSUE AND ARGUMENTS

The issue is whether the trial court erred in granting DCS’s Petitions to Interview

Children.1 Mother contends that the order compelling her to surrender her children for

1
The dissent’s position is that the issue is moot in light of the trial court’s refusal to grant a stay
pending appeal. However, given the brief amount of time, twelve days, between the court’s order
denying the stay and the Notice of Appeal, the fact that DCS does not claim that the issue is moot, the
4
interrogation was contrary to due process of law. She argues that she was deprived of her

right to due process because the relevant statutory scheme, Ind. Code § 31-33-8-7,

interferes with her right to raise and protect her children in the absence of fair procedures

and that “[e]ven though the initial report was proved false, [DCS] invoked the statutory

procedure to compel [her] six and eight year old children to be interrogated.” Appellant’s

Brief at 8. Mother maintains that “[t]his case clearly shows that to grant such a petition,

although permissible under the relevant statutes, is contrary to a parent’s right to due

process.” Id. at 9. Specifically, Mother argues that due process requires the presence of

additional procedural protections prior to compelling child interrogation. She asserts that

the private interest involved in this case of a parent preventing the damage which would

be caused by an interrogation is extremely significant, and Mother acknowledges that the

State has an interest in protecting children from parental neglect or abuse.

Mother further argues that, in considering the risk of error created by the

challenged procedure, analysis of the relevant statutory scheme shows that it permits

compelled interrogation in cases where there is no concern of danger to a child and in

violation of the due process guarantee. It is her position that the lack of a verification

requirement creates a risk of error, and that the lack of a requirement that a petition

include a factual basis establishing child abuse or neglect also creates a risk of error. She

maintains that her “right to raise / protect her child should not give way . . . where the

true facts conclusively demonstrate that no abuse or neglect is taking place,” and that

“[t]he State has no interest in interfering with her rights as a parent in such a situation.”

lack of evidence in the record indicating that the interview has occurred, and this Court’s preference for
deciding cases on their merits, we address the issue as briefed and presented to us on its merits.
5
Id. at 13. Mother states that the deficiencies of the statutory scheme become apparent

when compared to actions alleging a child is a child in need of services (“CHINS”)

generally, that in a CHINS action the coercive intervention of the State is not permitted

until a trial court is satisfied that a factual basis exists to warrant such intervention, and

that a CHINS petition must be verified, approved by the court, and contain sufficient

evidence demonstrating that a child is being abused or neglected.

Mother asserts that, for the statutory scheme to pass constitutional muster, DCS’s

petition must contain evidence under oath demonstrating that a child is being abused or

neglected, that if the factual basis rests upon hearsay the petition should establish the

credibility of the source or corroborate the information in some manner, and that the

adequacy of the factual allegations must be determined by a neutral, detached magistrate

at a hearing. Mother maintains that this is the only way to ensure that parents are

protected from malicious false reports or overzealous departments.

DCS maintains that the court did not deny Mother’s due process rights, that DCS

made Mother aware of the allegations, that Mother was afforded notice of the court’s

hearing on the petitions to interview, and that the court conducted a hearing where

Mother was provided an opportunity to be heard at a meaningful time and in a

meaningful manner. DCS argues that Mother has a right to raise the children and DCS

has a compelling interest in protecting children, that DCS only wanted to interview, not

interrogate, the children, and that the provisions of Ind. Code §§ 31-33-8 provide that

DCS shall initiate an appropriate and thorough child protection assessment and that the

assessment may include an interview. DCS posits that, given that the purpose of the

interviews is to assess the allegations, ensure the children’s safety, and make a
6
determination as to what actions DCS should take based upon the outcome of the

assessment, the additional steps requested by Mother are unwarranted.

DCS further contends that due process does not require a petition under Ind. Code

§ 31-33-8-7(d) to be verified, and that “[i]n recognizing that a request to interview

children is not on the same level of intervention as a CHINS Petition, where DCS is

requesting that the court intervene in a families’ [sic] life, our General Assembly chose

not to include a requirement that a petition filed under Ind. Code § 31-33-8-7(d) be

verified.” Appellee’s Brief at 11. DCS states that its petitions contained sufficient

information regarding the need to interview the children, that the language of Ind. Code §

31-33-8-7(e) requires the court to conduct a hearing, that thus the statute affords a parent

with due process through this requirement, and that Mother has failed to demonstrate any

harm. DCS further maintains that it satisfied its burden under Ind. Code § 31-33-8-7(d)

and that the court did not abuse its discretion or err in ordering Mother to produce the

children for an interview.

In her reply brief, Mother argues that DCS’s brief fails to demonstrate that her due

process rights were protected and “reveals the governmental agency’s arrogance, a belief

that it should be allowed to interrogate children at its whim without any meaningful

judicial oversight whatsoever.” Appellant’s Reply Brief at 1. Mother states that she is

required to show only a deprivation of a protectable interest and that she need not show

harm. Mother further contends that DCS’s protest of her use of the term “interrogation”

as opposed to “interview” “reflects a complete callousness as to the right of parents to

prevent compelled questioning of their children by governmental agents and to a

mother’s point of view,” that the present statute “permits compelled interrogation
7
whenever [DCS], in its subjective interpretation, feels that an interview is necessary to

protect a child,” and that “[d]ue process simply cannot condone compelled interrogation

to be totally dependent on the whim of a governmental agency.” Id. at 2. Mother also

asserts that she was not provided with an opportunity to be heard in a meaningful manner

and that the court’s hearing was not meaningful because the court was statutorily

permitted to enter the order even though it was not necessary for protection of the

children.

DISCUSSION

This case involves the ability of the DCS to interview a child as part of an initial

assessment in response to a report of child abuse or neglect. Ind. Code §§ 31-33-8

govern the investigation of reports of known or suspected child abuse or neglect. Ind.

Code § 31-33-8-1(a) provides that “[t]he department shall initiate an appropriately

thorough child protection assessment of every report of known or suspected child abuse

or neglect the department receives, whether in accordance with this article or otherwise.”

At the time of the petitions, Ind. Code § 31-33-8-1(c) provided that “[i]f the report alleges

a child may be a victim of child abuse, the assessment shall be initiated immediately, but

not later than twenty-four (24) hours after receipt of the report.” (Supp. 2009)

(subsequently amended by Pub. L. 205-2013, § 339 (eff. Jul. 1, 2013), moving language

to subsection (e)). Ind. Code § 31-33-8-6 provides: “The department shall promptly

make a thorough assessment upon either the oral or written report. The primary purpose

of the assessment is the protection of the child.”

With respect to the scope of the assessment and a petition to interview a child, Ind.

Code § 31-33-8-7 provides:
8
 (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:

(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.[2]

2
Ind. Code §§ 31-32-12 relate to a juvenile court authorizing mental or physical examinations or
treatment.
9
 (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.

Ind. Code § 31-33-8-12 provides that “[u]pon completion of an assessment, the

department shall classify reports as substantiated or unsubstantiated.”

With respect to Mother’s argument that Ind. Code § 31-33-8-7 interferes with her

right to raise and protect her children and that due process requires the presence of

additional procedural protections prior to compelling the interview of a child, this court

has noted that the Due Process Clause of the Fourteenth Amendment to the United States

Constitution protects a parent’s fundamental right to raise her child without undue

interference by the state. In the Matter of G.W. v DCS, 977 N.E.2d 381, 384-385 (Ind.

Ct. App. 2012) (citing In re T.H., 856 N.E.2d 1247, 1250 (Ind. Ct. App. 2006)), trans.

denied. However, “[t]hat fundamental right is not unlimited . . . because the state has a

compelling interest in protecting the welfare of children. When parents neglect, abuse, or

abandon their children, the state has the authority under its parens patriae power to
10
intervene.” Id. at 385 (internal quotation marks omitted and citing G.B. v. Dearborn

Cnty. Div. of Family & Children, 754 N.E.2d 1027, 1032 (Ind. Ct. App. 2001), trans.

denied). Due process is essentially “the opportunity to be heard at a meaningful time and

in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893 (1976).

When determining whether a litigant received proper process, we balance three factors:

“(1) the private interests affected by the proceeding; (2) the risk of error created by the

State’s chosen procedure; and (3) the countervailing governmental interest supporting use

of the challenged procedure.” In re J.S.O., 938 N.E.2d 271, 274 (Ind. Ct. App. 2010). As

we review and balance these three interests, we recognize that, “although due process is

not dependent on the underlying facts of the particular case, it is nevertheless ‘flexible

and calls for such procedural protections as the particular situation demands.’” Lawson

v. Marion Cnty. Office of Family & Children, 835 N.E.2d 577, 580 (Ind. Ct. App. 2005)

(quoting In re B.T., 791 N.E.2d 792, 795 (Ind. Ct. App. 2003), trans. denied). The

private interest affected by the proceeding of a parent’s interest in the care, custody, and

control of her child is substantial, and the countervailing factor of the State’s parens

patriae interest in protecting the welfare of a child is also substantial. In re C.G., 954

N.E.2d 910, 917-918 (Ind. 2011).

The statutory provisions set forth above provide requirements and guidance for

DCS to undertake a child protection assessment in response to the receipt of a report of

child abuse or neglect, and the provisions provide that the assessment must include the

conditions of the children in the home. According to the statute, at the stage or point that

a report is received by DCS, the report and any allegations made by way of the report

have not yet been investigated and are not yet classified as substantiated or
11
unsubstantiated. The determination to classify a report as substantiated or

unsubstantiated is made following the completion of the assessment, which may include

an interview of the child under Ind. Code § 31-33-8-7(b) and as set forth in Ind. Code §

31-33-8-7(d) and (e). The assessment as described by Ind. Code § 31-33-8-7 is a

preliminary process undertaken by DCS following the receipt of a report in order to

evaluate or determine whether a basis exists to substantiate the report and which may

require action of some nature by the state to protect the child or children. See Ind. Code

§ 31-33-8-6 (noting that the “primary purpose of the assessment is the protection of the

child”). While 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. We cannot say that legislation allowing DCS the ability

to interview a child as part of the initial assessment and after obtaining a court order if

necessary violates due process. See G.W., 977 N.E.2d at 386 (noting that this court was

aware of no constitutional prohibition against the proposed child interview

arrangements). Further, as noted above, parents’ fundamental right to raise their children

without undue interference by the state, and the state’s interest in protecting the welfare

of children are both substantial, see In re C.G., 954 N.E.2d at 917-918, and we cannot say

that the risk of error created by the legislature’s chosen procedure in Ind. Code § 31-33-8-

12
7 or the actions of DCS or the trial court in this case is substantial or favor reversal in this

case.3

In addition, we do not find Mother’s argument that the fact that Ind. Code § 31-33-

8-7 does not require that a request for a child interview be verified, or include, similar to

the initiation of CHINS actions, a basis that abuse or neglect occurred to be compelling.

The statutory provisions related to the filing of a petition alleging that a child is a CHINS,

found at Ind. Code §§ 31-34-9, provide that DCS must request the juvenile court to

authorize the filing of a CHINS petition, see Ind. Code § 31-34-9-1, that the juvenile

court shall consider the inquiry “and the evidence of probable cause that is contained in

the report of the preliminary inquiry or an affidavit of probable cause” and authorize the

filing of a petition if the court finds probable cause to believe that the child is a CHINS,

Ind. Code § 31-34-9-2 (emphasis added). The CHINS petition must “be verified,”

contain a citation to the provision of the juvenile law that defines a child in need of

services, and contain “[a] concise statement of the facts upon which the allegations are

based, including the date and location at which the alleged facts occurred.” Ind. Code §

31-34-9-3 (emphasis added). A child is a CHINS in part if the child’s physical or mental

3
See Phillips v. Cnty. of Orange, 894 F. Supp. 2d 345, 376 (S.D.N.Y. 2012) (noting that “there is
no authority to substantiate the Parent Plaintiffs’ claim that the in-school interview of [the child],
conducted after CPS received a call alleging that [the child] was the victim of sexual abuse, violates their
liberty interest in her care, custody, and management”); Hawley v. Nelson, 968 F. Supp. 1372, 1386 (E.D.
Mo. 1997) (stating in part that, upon receiving a report of suspected neglect or abuse, the division of
family services was required under Missouri law to undertake a thorough investigation, that such a
thorough investigation would reasonably include an interview with the child, that in the context of the
investigation the failure to secure parents’ permission for interviews “protected the state’s very strong
interests in protecting the child and learning in timely fashion what the child had to relate about the
matter,” and that “[t]his interest was paramount to the personal interests of the plaintiffs in preventing
false accusations”), judgment aff’d, 141 F.3d 1168 (8th Cir. 1998); J.B. v. Washington Cnty., 127 F.3d
919, 925-927 (10th Cir. 1997) (recognizing the importance of both the private and governmental interests,
turning to the last factor in the Mathews balancing and examining the procedures used, and stating that
given the situation the procedures employed were reasonably calculated to balance the competing
interests and to achieve an interview with the child untainted by the parents’ influence).
13
condition is seriously impaired or seriously endangered and the child needs care,

treatment, or rehabilitation that the child is not receiving and is unlikely to be provided or

accepted “without the coercive intervention of the court.” Ind. Code § 31-34-1-1. Under

the CHINS statute, among other things, a child may be taken into custody, a parent may

enter a program of informal adjustment, and the court may enter a decree ordering

supervision of the child by DCS, that the child receive outpatient treatment, that the child

be removed from the home, and that the child’s parent complete services recommended

by DCS. See Ind. Code §§ 31-34-2, -4, -8, 20. In contrast, as mentioned above, Ind.

Code §§ 31-33-8 address the investigation of reports of suspected child abuse or neglect

and set forth the process to be undertaken by DCS following the receipt of such a report.

The assessment described in Ind. Code § 31-33-8-7 may include an interview of the child,

and this assessment, including the interview, may provide the information needed for

DCS to classify the report as substantiated or unsubstantiated. The extent and nature of

DCS’s role in completing an assessment under Ind. Code § 31-33-8-7, including a child

interview, to determine whether a report is substantiated is clearly distinct from the

coercive intervention of DCS on behalf of the state under the CHINS proceedings in Ind.

Code §§ 31-34. Further, we cannot say that Mother was not afforded notice of the

hearing on the petitions to interview or an opportunity to be heard with respect to the

petitions at a meaningful time and in a meaningful manner.

CONCLUSION

Based upon the record and under these circumstances, we conclude that Mother

has failed to establish that the trial court erred in granting DCS’s Petitions to Interview

14
Children or that she was denied due process. Accordingly, we affirm the ruling of the

trial court.

For the foregoing reasons, we affirm the trial court’s order granting the Petitions to

Interview Children.

Affirmed.

BRADFORD, J., concurs.

RILEY, J., dissents with separate opinion.

15
 IN THE
COURT OF APPEALS OF INDIANA

IN RE: THE MATTER OF A.H. and S.H., )
Minor Children, )
)
V.H. (Mother), )
)
Appellant-Respondent, )
)
vs. ) No. 10A01-1302-JM-93
)
INDIANA DEPARTMENT OF CHILD )
SERVICES, )
)
Appellee-Petitioner. )

RILEY, Judge, dissenting

I respectfully dissent from the majority’s decision to affirm the trial court’s order

granting the DCS’s petitions to interview the minor children as part of an assessment in

response to a report of child abuse or neglect. Although the majority analyzes the merits

of Mother’s claim, I would dismiss the appeal as moot.

An issue becomes moot when it is no longer live and the parties lack a legally

cognizable interest in the outcome or when no effective relief can be rendered to the

parties. Indiana High School Athletic Ass’n, Inc. v. Durham, 748 N.E.2d 404, 410 (Ind.

Ct. App. 2001). An actual controversy must exist at all stages of the appellate review,

and if a case becomes moot at any stage, then the case is remanded with instructions to

16
dismiss. Id. On February 6, 2013, the trial court issued its order, compelling Mother to

produce her minor children for interviews within ten days of the issuance of the order.

Despite Mother’s request, the trial court refused to stay the interviews pending her

appeal. In the absence of any evidence to the contrary, I must conclude that the children

have been interviewed and no effective relief can be given to Mother.

Although a public interest exception to the mootness doctrine exists, it is not

applicable to the instant case. The public interest exception posits that an otherwise moot

case may be decided on the merits if the case involves a question of great public

importance or interest that is likely to recur. Id. at 412. The instant issue is not capable

of recurrence as contemplated by the public interest exception. The statutory protection

of the welfare of the minor children based on the conditions in the home and on a

completion of an assessment is a question of fact that varies from family to family and

changes over time. See I.C. § 31-33-8-7(a). Although the question may recur in a very

generalized setting, no conclusion within the authority of this court can bear on future

disputes with respect to a DCS’s petition to interview the minor children because a

determination of factual circumstances must be made each time a disputed interview is

sought. I conclude that the case does not present an issue of great public interest and,

therefore, I would dismiss the appeal as moot.

17