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).

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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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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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