B.F. v. Ind. Dep't of Child Servs. for Crawford Cnty. (In re F.S.)

• Decision Date: 12 May 2016
• Docket Number: No. 13A01–1505–JM–363.,13A01–1505–JM–363.
• Citation: 53 N.E.3d 582
• Parties: In the Matter of F.S., T.W., M.F., and B.F. (Minor Children) and B.S. (Mother), Appellant–Respondent, v. Indiana Department of Child Services for Crawford County, Appellee–Petitioner.
• Court: Indiana Appellate Court

53 N.E.3d 582

In the Matter of F.S., T.W., M.F., and B.F. (Minor Children) and B.S. (Mother), Appellant–Respondent

v.Indiana Department of Child Services for Crawford County, Appellee–Petitioner.

No. 13A01–1505–JM–363.

Court of Appeals of Indiana.

May 12, 2016.

Matthew J. McGovern, Anderson, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, James D. Boyer, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.

ROBB, Judge.

[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 History¹

[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 (“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, 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 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 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 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 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 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)

...