In the Matter of A.G. and A.K. Children Alleged to be in Need of Services, M.K. v. Indiana Department of Child Services
2014 Ind. App. LEXIS 107
Ind. Ct. App.2014Background
- Mother’s son A.G. experienced unexplained, life‑threatening cyanotic episodes beginning shortly after birth; multiple hospitals evaluated him but could not identify an internal physiological cause.
- At Kosair, physicians concluded episodes were best explained by external force and suspected Factitious Disorder by Proxy; doctors recommended mother not be left alone with A.G. and suggested video surveillance.
- While under supervised visit in September 2012, Mother held A.G. out of camera view immediately before an episode; specialists (including a child‑abuse pediatrician and a forensic team) believed Mother likely induced episodes.
- DCS filed CHINS petitions for A.G. and for newborn A.K.; children were removed from Mother’s custody and hearings were held.
- Mother invoked her Fifth Amendment right and declined to testify at the fact‑finding hearing. The trial court drew a negative inference from that refusal, found Mother had Factitious Disorder by Proxy, and adjudicated both children CHINS.
- On appeal Mother challenged only the trial court’s use of an adverse inference from her invocation of the Fifth Amendment; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court could draw an adverse inference from Mother’s invocation of the Fifth Amendment in a CHINS (civil) proceeding | Mother: drawing a negative inference in CHINS is improper because parental liberty interests are at stake and criminal prosecution risk makes the privilege protections relevant | DCS/State: CHINS is a civil matter; adverse inferences from silence in civil cases are permissible under Indiana precedent | Court: Adverse inference in civil CHINS adjudication permissible under existing Indiana law; Mother waived major constitutional argument and did not challenge other findings, so judgment affirmed |
Key Cases Cited
- Gash v. Kohm, 476 N.E.2d 910 (Ind. Ct. App. 1985) (civil trier of fact may consider refusal to testify when drawing adverse inferences)
- Baxter v. Palmigiano, 425 U.S. 308 (1976) (Fifth Amendment does not bar adverse inferences in certain civil contexts)
- Baltimore City Dep’t of Social Servs. v. Bouknight, 493 U.S. 549 (1990) (limits on invoking privilege in regulatory/family‑welfare contexts)
- In re N.E., 919 N.E.2d 102 (Ind. 2010) (CHINS adjudication focuses on condition of the child)
- Morgan v. Kendall, 24 N.E. 143 (1890) (historic rule allowing consideration of refusal to testify in civil cases)