*1 opinion, Bryson fore in Dr. Markland’s impairment.
has a covered p. 93.
Appellant’s App. Bryson’s personal
I would conclude that
injury pre-existing did not exacerbate a required coverage.
condition as for Class
Rather, Bryson’s degenerative disc disease
puts reinjury him at risk of with debilitat-
ing pain. Bryson’s safety-sensitive Given firefighter, as a this
position risk renders perform
him unable to the duties of his
employment. The supports record that, among
conclusion things, Bry- other firefighter
son’s work as a generally con- degenerative
tributed to his disc disease.
Therefore, he should be entitled to Class
coverage. judg- would reverse the trial court’s
ment affirm the agency’s decision on grounds.
these other (Minor Child)
In the Matter of G.W. (Mother) (Stepfather),
A.W. and J.W.
Appellants-Respondents,
v. Department
The Indiana of Child
Services, Appellee-Petitioner.
No. 07A01-1201-JM-6. Appeals
Court of of Indiana.
Oct. *2 Franklin, IN, Ap- receipt report.” for hours after of Ind. Auger, R. Michael 31-33-8-l(c). Indiana Sec- A.W. Code Code pellant provides pri- that “[t]he tion 31-33-8-6 Kosmala, County Brown DCS Richard mary purpose of the assessment is the Henke, Office, Nashville, IN, Robert J. protection the child.” Pursuant Administration, Indianapolis, DCS Central 31-33-8-7(b), Indiana Section the as- Code IN, Appellee. may include interview with “[a]n
sessment in- subject requested OPINION child.” DCS an interview, terview with M.F. Prior to the CRONE, Judge. diary typed copies DCS received entries parent to make a May court order computer by paternal on a owned M.F.’s requested for an interview child available grandmother, but stored under M.F.’s Department of Child Ser- by the Indiana that sexual intercourse password, describe (“DCS”) child’s “condi- vices to assess that Also, Stepfather. between M.F. and 31- pursuant tion” to Indiana Code Section biological reported father M.F.’s 33-8-7, sibling has where the child’s older Stepfather’s that M.F. had told G.W. about allegations of sex- made and then recanted touching and that G.W. then inappropriate family who against ual abuse member touching. told Mother about the The trial lives in the children’s home? question that court in this case answered During her interview at Susie’s Place affirmative, agree. and we Bloomington, allega- M.F. recanted her History Facts and Procedural against Stepfather. tions She said allegations she made those because she 2011, nine-year-old In November G.W. spending with Mother for not as angry was sister, M.F., twelve-year-old and her lived doing many much time with her or as (“Mother”), mother, their with A.W. with her once M.F. things as she had. in Trafal- stepfather, (“Stepfather”), J.W. diary making also denied entries and gar. Stepfather M.F. Mother that told the one who said that she was had told legs her while had kissed her and rubbed touching De- Mother about the incidents. they watched television and had cuddled recantation, spite requested M.F.’s with her in and touched her bottom. bed revelations, an interview Mother with G.W. refused response to these Mother counseling request. took M.F. to a session Green- Shortly
wood on November 2011. af- 15, 2011, On December DCS filed an ended, ter the session Mother was contact- emergency petition amended verified allegations ed DCS about M.F.’s compel Stepfather Mother and to make against Stepfather. The peti- G.W. available for interview. 31-33-8-l(a) pro- Indiana Code Section pertinent part tion as follows: reads appropri- initiate an vides DCS “shall to believe that Good cause exists ately thorough protection child assessment may at be risk. Access [G.W.] every report of known or necessary is to en- [G.W.] [DCS] re- neglect child abuse or safety complete sure her ceives, with whether accordance this sister, investigation. The child[’s] report alleg- article or otherwise.” “If the [M.F.], victim of alleged to be the abuse, es a child victim of sexual abuse her Mother’s cur- shall be initiated immedi- assessment safety plan A for the ately, twenty-four but not later than rent husband. child has not been established and A visit to the child’s home. safety of the DCS cannot ensure the (2) An interview with child. child. *3 feels that in order to
5. That [DCS] (3) physical, A psychological, psy- or carry investigative out its duties it is chiatric examination of any child in necessary for an authorized Child the home. Investigator Welfare to have access (c) If: that it be in the and would [G.W.] (1) home, school, admission to the best interest of [G.W.] [Mother] any place other may the child [Stepfather] coop- and be ordered to be; or ongoing investiga- erate (2) permission parent, of the guard- investigator tion and allow the DCS ian, custodian, or other persons re- to conduct interviews of the minor sponsible for child for child. physical, psychological, or psychiat- Emergency exists in that no formal examination; ric arrangements] have been made to (b) obtained, under subsection cannot be safety ensure in the home. [G.W.’s] court, juvenile upon good cause
Appellee’s App. at 1-2. shown, shall follow the procedures under statutes, petition DCS based its on three 31-32-12. IC only two of which are mentioned in the (d) If parent, a custodial guardian, a trial court’s The order. first is Indiana or a custodian of a child refuses to allow 31-33-8-7, Code Section which reads as the department to interview the child follows: after the attempted caseworker has (a) assessment, department’s The obtain the consent of par- the custodial reasonably possible, the extent that is ent, guardian, or custodian to interview following: must include the child, department may petition a (1) nature, extent, The and cause of court to order parent, custodial the known or child abuse or guardian, or custodian to make the child neglect. available to be interviewed the case- (2) identity person alleged- The of the worker.
ly responsible for the child abuse or (e) If the court finds that: (1) a parent, guardian, custodial or a (3) The names and conditions of other custodian has been informed of the children in the home. hearing on a petition described under (4) parent, An evaluation of (d); subsection guardian, person respon- custodian or department has made reason- sible for the care of the child. able and unsuccessful efforts to obtain (5) The home environment and the the consent of the parent, custodial relationship parent, of the child to the guardian, or custodian to interview guardian, or custodian or other per- child; responsible sons for the child’s care. specify the court shall in the order the perti- All other data considered efforts the made to obtain nent. parent, the consent of the custodial (b) may The guardian, assessment include the or custodian and grant following: the motion to interview the either provision, The this court finds that com parent, without the custodial with or provides au being bined with I.C. 31-32-13-1 guardian, present. or custodian provides: The upon guardian, tem, the any child or the custodian, an order: nation Upon son (1) 12; or second the prosecuting person to control to to in relation to the motion probation prevent provide or treatment under IC 31-32- custodian, statute juvenile child’s providing services juvenile the conduct of a child from a child with an exami- *4 attorney, officer, of a parent, guardian, of court’s motion or 31-32-13-1, child child; court guardian child’s the caseworker, services, leaving any per- attorney parent, to the which ad issue li- or grant thor ther of ent for the based on thority the [DCS] Even though the evidence indicated that court finds sexual intercourse sister, obtain the consent of the custodial [G.W.’s] sister [G.W.’s] sister ous nature of the [G.W.]. relatively allegations of reported diary who resides [DCS’s] has made reasonable efforts to the court finds the for the court’s The diary interview, good initial close request for an interview and denied of child molestation court further subsequently recanted original allegations entries, with, cause for the age allegations entries as shown of [G.W.’s] [G.W.’s] good order. given being [G.W.] describing finds [1] cause made the seri the au stepfa by to her home. order par that The and by, to jurisdiction. court’s hearing, presented evidence at the from the Family Manager both Case and the 2011, 20, On trial court December child’s mother. hearing petition. held a on the DCS fami- ly manager Ashley Collins testified IT IS THEREFORE ORDERED case that permit that wanted to interview G.W. “to shall to be [Mother] [G.W.] she [DCS], make The sure that she’s safe also discuss interviewed interview shall be at Susie’s Place in regarding the inconsistencies” how Mother conducted time alleged Bloomington, Tr. at IN at a and date learned about the abuse. 27, 2011, 11. On December the trial court scheduled [DCS]. petition granting that issued order Appellant’s App. at 5-6. The trial court
reads as pertinent part follows: stayed pending appeal.2 its order Mother’s Although specif 31-33-8-7 does not I.C. and Decision Discussion an interview ically address of the trial challenges other than a 31-33-8- Mother court’s I.C. 7(a) compel. require grant petition does assessment to in We DCS’s clude the name and condition of other that note the Due Process Clause of the added.) (emphasis to the children in the home Fourteenth Amendment U.S. Con- Although Stepfather 2. We note did not file a the trial court’s order does not so notice specify, hearing based on our review of the appeal, presumably because trial court transcript and the fact that does not order anything. did not him do We have order 31-32-12, Chapter we mention Indiana Code caption Stepfather included in the case be- referring conclude that the court is here to its respondent he cause was named as a in DCS’s authority an order to to issue "control petition compel. any person in to the conduct of relation pursuant child” to Indiana Code Section 31- 32-13-1.
385 KPMG, Marwick, Peat LLP v. Carmel protects parent’s fundamental stitution (Ind.Ct. in- Corp., Fin. 1057, to raise her child without undue right 784 N.E.2d 1060 T.H., (citations omitted). re terference the state. 856 App.2003) Statutes re- 1247, (Ind.Ct.App.2006). N.E.2d lating general subject same matter unlimited, right That is not (on fundamental in pari subject) are materia the same however, compel- because “the state has a and should be together pro- construed ling protecting interest the welfare of duce a harmonious scheme. abuse, parents neglect, When children. Klotz v. (Ind.2009). Hoyt, N.E.2d children, their the state has the abandon argues Mother authority parens power its patriae under Cnty. v. Dearborn to intervene.” G.B. Indiana Code 31-33-8-7 clear about Children, Family Div. & 754 N.E.2d what must be included in an assessment 1027,1032 (Ind.Ct.App.2001), trans. denied what may in an included assess- Interestingly, ment. upon a strict read- (2002). statute, *5 ing of the an interview of the Here, Mother contends that the tri subject child is not something that must concluding al in court erred Indiana by be done cases of Section 31-33-8-7 authorizes a court Code abuse and compel parent to a to make available for an interview a child who is not the Appellant’s Br. at 9-10 (citing Ind.Code investigation.3 a Our of child abuse stan 33—8—7(b)(2)). § may, Be that as it 31— of review well dard is settled. provides assessment, statute also that an question statutory interpretation A of “to the extent that is reasonably possible, and we are neither must include ... law, is a matter of names and [t]he condi- by, required give bound nor are we to tions of other children in the home.” Ind. to, 33—8—7(a)(3) added). § deference the trial interpreta- court’s (emphasis Code 31— statute, interpreting tion. When a we specifically And the statute contemplates to express language may look of the stat- that DCS interview those “other chil- ute and the rules of construc- dren” determine their conditions and objective tion. The Court’s when con- necessary obtain a court order if to facili- struing meaning a tate such interviews. See Ind.Code of statute is to 31- 33-8-7(d) (“If give ascertain and effect to the legisla- parent, a custodial a guard- ian, tive custodian of a child [as interpret intent and to the statute in or a opposed such a manner to prevent absurdity as to ‘the or ‘the subject child’ child’ men- public and to advance convenience. tioned elsewhere refuses to statute] doing, so we must be mindful of the allow the to interview the child statute, purpose of the as well as the after the attempted caseworker has to ob- interpretation. effect of such an tain parent, We the consent of the custodial presume that legislature guardian, our intended its or custodian to interview the language applied logical in a manner department may petition a court underlying goals consistent with the parent, guardian, and to order the custodial policy of the statute. custodian to make the child available to be portion 3. We note that Mother devotes a of not consider it here. We also note Moth- argument her Indiana Code Section 31-32- argument regarding er makes no Indiana 12-1, petition which DCS mentioned in its 31-32-13-1, Code Section and DCS does not compel, but because the trial court not did rely appeal. on it on ruling, cite that statute a we as basis for its do caseworker.”) to determine her condition. It (empha- order interviewed added). argued cannot be that the lan- certainly sis a child to be guage of the statute allows of the intrusiveness challenges Mother presence outside the placed in location interview this case: necessity for an and parents, of her witnessed numerous simply is not being requested is [W]hat including of the State State Po- agents her and to ensure a look at G.W. to take Officers, Ser- Department lice Child physical to determine her safety and enforce- Employees, vices and other law by Indiana suggested as “condition” subjected battery to a agents, ment 31-33-8-7(a)(3), but what Code [Section] solely questions auspices under has been de- sought is what being is determining the child’s “condition.” interview” of as a “forensic scribed interview, will be [G.W.] In this (citations [G.W.]. ap- Br. at 11-12 Appellant’s called “Susie’s Place” facility taken to omitted). transcript pendix and There, Bloomington, [G.W.] Indiana. suggestion Mother’s that Indiana As for who are not parents, is taken from her 31-33-8-7(a)(3) only Section refers Code interview, permitted to witness condition, we physical disagree. to a child’s examined subjected being is limitation, The statute contains no such on-lookers from while several stranger it. Am. and we not read one into See agents enforcement and other law Banco, McNaughton, Inc. v. Heritage from another room. watch (“We (Ind.Ct.App.2008) N.E.2d presented was at The evidence that that which may not read into statute *6 petition clearly the hearing the on expressed legisla- not the intent of the respon- the individual demonstrated that ture.”). In the context of a child abuse allegations certain of causing sible for investigation, common sense dictates that made had recanted those abuse to be the conditions of DCS must assess overall Furthermore, there have allegations. home, including in the their other children any allegations wrong of do- never been physical, psychological, and emotional sta- ing involving G.W. or that G.W. had [sic] tus. been the victim of either child abuse Regarding complaints Mother’s about such, improper As it was proposed arrangements, interview she W., over the the trial court to cause G. statutory prohibi- cites no or constitutional mother, objection subject of her to a them, against tions and we are aware of upon the basis of forensic examination fact, none. In Indiana Code Section 31- All determining her “condition.” of notify requires appro- 33-8-2 DCS to hearing evidence at the of the DCS Peti- priate agency law enforcement when it tion established that G.W. had been at- abuse, report receives a tending regularly school since the alle- the re- agency investigate and that must sister, gations by that were made her Moreover, in port conjunction with DCS. such, and as her “condition” was not 31-33-8-7(e) specifi- Indiana Code Section Moreover, to the extent that dispute. cally provides “may grant that the court 31-33-8-7(a) Indiana re- Code [Section] to interview the either motion quires the to determine the “condi- ... parent with or without the custodial assessment, tion” of G.W. for use its Also, nothing prohibits being present.” a “forensic inter- sought relief designating party from a third Bloomington view” at Place in is DCS Susie’s interview a child outside the home.4 certainly necessary much more than is Place, explained respect 4. With DCS’s counsel that DCS was to Susie's J., BAILEY, interview is concurs. insistence that an Mother’s unnecessary her because M.F. recanted J., RILEY, opinion. dissents with against Stepfather denied allegations RILEY, Judge, dissenting. diary entries writing the aforementioned obligation to DOS’s threshold disregards respectfully disagree majori- with the children in the “conditions of other ty’s assess to affirm the opinion trial court’s order pursuant to Code Sec- to make available for a inter- the home” Indiana G.W. forensic 31-33-8-7(a)(3). view at Susie’s Place in Bloomington. trial court tion The decision, reaching majority equates its testimony from Collins that heard DOS’s request the DOS’s for a forensic interview disclosure part “recantation of [the] of a child who is not the of an subject still police and that the were ana- process” investigation abuse with the re- computer on incrimi- lyzing which the quirement the DOS’s assessment diary entries to deter- nating typed were “[t]he must include names and conditions actually written mine whether M.F. had of other children the home.” 31- I.C. Tr. at 15. Mother’s assertion them. 33-8-7(a)(3) added). (emphasis Specifical- recantation and must be that M.F.’s denial ly, opinion interprets “condition” as unsupported taken at face value is ei- encompassing possibility logic. ther law other children home to an invasive reasons, largely the we are For same interview. forensic that an unpersuaded Mother’s assertion The majority analysis commences its unnecessary because interview G.W. is premise with the argument DOS’s are no allegations involving there of abuse arises out of concern for ‘condi- G.W.’s G.W. has and Mother testified that G.W. However, appellate tion.’ DOS’s argument any danger. been As trial never its contradicts clear evi- intentions as order, allegations noted in its court M.F.’s during its words denced and actions serious, relative- are and she and G.W. are *7 dur- proceedings. point trial court At no no ly age. Simply allega- in because close ing proceedings the before the trial court been G.W. and regarding tions have made did the ever refer to for DCS its concern safety has vouched for her does Mother ‘condition’; rather, con- repeating G.W.’s a that court’s not mean DOS’s and the trial theme, the stant DCS hammered on its the are same By concerns unwarranted. forensieally and right to interview G.W. token, proves G.W.’s school lit- attendance thereof. overt- Mother’s refusal DCS was for pur- her overall condition regarding tle ly authority, point of its confident to the of Indiana 31-33-8- poses Code Section scheduled at that it had G.W.’s interview 7(a)(3). to take after place days Susie’s Place two sure, hearing. the trial court’s To be sum, Mother has failed to establish request DOS’s more invasive than a granting the trial that court erred mere kitchen table conversation to assess petition compel. Consequently, DOS’s G.W.’s condition her home and in the affirm the trial court’s order. we Instead, parents. her presence of as con- family DOS’s case manager, Affirmed. ceded a, mean, objective offering trying we were as a just that as as but to offer that a[n] mean, we, having objective way to do we for the place an interview. I standard happy be do the inter- would more than interview. home. at 27. view ourselves mother’s Tr. (2) permission parent, guard- of the being G.W. taken interview entails
forensic ian, custodian, re- persons an ex- or other subjected and parents from her sponsible the child for the forensic interview- by a certified amination psychiat- or physical, psychological, and law employees er while several DCS examination; ric watch from another agents enforcement lacks the my opinion It is room. (b) obtained, cannot be under subsection authority to conduct a forensic court, juvenile upon good the cause non-subject residing of a child interview shown, procedures shall follow the under the home. § 31-32-12. [I.C. ] repeating Ind. Code
It is worth (d) parent, guardian, If a custodial or scope of assess- 31-83-8-7 addresses a custodian of a child refuses allow perti- provides, ment department to interview the child nent part: attempted after the caseworker has
(a) assessment, department’s to the par- The obtain the consent of the custodial reasonably possible, ent, must extent that is to interview guardian, custodian following: department petition include parent, court to order the custodial (1) nature, extent, The and cause of make guardian, or custodian to the child known child abuse or available to interviewed case- neglect. worker. (2) identity person alleged- The of the (e) ly responsible for the child abuse or If the court finds that: (1) parent, guardian, a custodial or a (3) The names and conditions of other custodian has been informed of the children in the home. hearing petition on a described under (4) parent, An evaluation (d); subsection guardian, person respon- custodian or has made reason- for the care of the child. sible able and unsuccessful efforts to obtain (5) The home environment and the parent, the consent of the custodial relationship parent, to the guardian, or to interview custodian guardian, per- or custodian or other child; responsible sons for the child’s care. specify the court shall in the order the perti- All other data considered *8 efforts the made to obtain nent. the of the parent, consent custodial (b) may The assessment include the fol- guardian, may grant or custodian and lowing: the motion to interview the either (1) A visit to the child’s home. parent, with or without the custodial (2) subject guardian, being present. An interview with the or custodian child. parties acknowledge agree Both and I physical, psychological, psy- A or “subject the use of the word “child” or any examination of chiatric child child” within the statute references the the home. child who is the focus of the investi- ie., (c) If: such, gation, G.W.’s sister. As the home, school, only provision admission to the the to G.W. resides applicable 33—8—7(b)(3) § any place may specifies other that the child with I.C. which 31—
be; that the conduct an examination
389
However,
981,
N.E.2d
983
any
(Ind.Ct.App.2000).
child in the home.
be-
In
an
particular,
involving
parent’s
action
refused to consent to the
cause Mother
care,
interview,
custody,
interest in the
and control of
procedures pursu-
the
forensic
pertains
his children
to “perhaps the oldest
§ 31-32-12 had to be followed.
ant to I.C.
liberty
of the fundamental
33—8—7(c)(2).
interests” rec-
Therefore, in
See I.C.
31—
ognized by the
Supreme
United States
consent,
trial
parental
the absence of
the
Granville,
57,
v.
Court. Troxel
530 U.S.
only
court could
order
examination
2054, 2060,
120
147
S.Ct.
L.Ed.2d 49
that an
upon
physician
certification
(2000). Accordingly, parent’s
interest in
§ 31-32-12.
emergency existed. See I.C.
accuracy
justice
the
of the decision is a
No
was filed in the instant
certification
commanding
Dep’t
one. Lassiter v.
So-
case.
Servs.,
18, 27,
2153,
cial
452 U.S.
101 S.Ct.
initially
Although
majority
appears
(1981). Although
court’s Ashmann,
Jeffrey and Mark RIGGS
Appellants-Plaintiffs,
v. WEINBERGER, M.D., Mark
Mark S. M.D., P.C.,
Weinberger, Merrillville LLC, Surgery, Advanced
Center for Center, LLC, Ap
and Nose and Sinus
pellees-Defendants.
No. 45A03-1109-CT-394. Appeals Court of of Indiana. Cutshaw, Adam Haw- David J. Gabriel kins, Johnson, Takeena M. Kelley J. 12, 2012. Oct. Malad, LLC, Thompson, Cohen & India- IN,
napolis, Attorneys Appellants. for Noren, Hough, James L. Ami Anderson P.C., Dougherty, Spangler, Jennings & Merrillville, IN, Attorneys Appellees. REHEARING OPINION ON BAKER, Judge. rehearing.
This case comes before us on interlocutory appellants- In this appeal, Jeffrey plaintiffs Mark Ashmann of a Riggs appealed grant the trial court’s Psychological for a Trial Motion Rule by appellees-defendants Examination filed M.D.; Weinberger, Mark S. Mark S. M.D., P.C.; Weinberger, Merrillville Cen- LLC; Surgery, ter for Advanced and Nose Center, (collectively, and Sinus LLC Entities). Weinberger Ashmann and Weinberger that the En- Riggs contended tities did not show that Ashmann and *10 their mental condition in con- Riggs placed Moreover, troversy. Riggs Ashmann and