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.
Rehearing Denied Aug. 4, 2016.
50 N.E.3d 585
ROBB, Judge.
Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, James D. Boyer, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.
1ROBB, Judge.
[1] B.S. (“Mother“) appeals the trial court‘s order, based on authority granted by
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 multi-
[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.
[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:
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 . . . .”
(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.
(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.
(Emphasis added.) Upon completion of an assessment, the initial report shall be classified as substantiated or unsubstantiated.
[13] A petition seeking to order a parent to make a child available for an interview by DCS is also governed by
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, after testing positive for methamphetamine and amphetamine, and she signed a consent for DCS to interview the
[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 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, 88 S.Ct. 1889, 20 L.Ed.2d 917 (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
[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
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
[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 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. 2001).
B. Order on Motion to Interview
[21] Mother does not argue
[22] For its part, the State concedes Mother has a fundamental due process
[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 governmental interest supporting use of the challenged
[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.
[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 cor-
[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 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 appro-priate agency shall initiate a diligent investigation to determine if the child is in need of protection and services.
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 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
[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
[32]
[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 reports18 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 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.
[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 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”
[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.
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
[41] Reversed.
BARNES, J., and ALTICE, J., concur.