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COA split over whether DCS has authority to interview sibling

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An Indiana Court of Appeals judge reached the opposite conclusion of her colleagues Wednesday in finding that the Department of Child Services lacks the statutory authority to conduct a forensic interview of a non-subject child residing in the same home as a child who has claimed abuse by a resident family member.

Mother A.W. appealed the Brown Circuit Court order granting the DCS’ petition to interview then 9-year-old G.W., whose 12-year-old sister M.F. had alleged then recanted that her stepfather touched her inappropriately. In investigating the claim, DCS received copies of diary entries stored under M.F.’s password on her grandmother’s computer that described sexual intercourse between the girl and her stepfather. M.F.’s biological father also claimed that G.W. told her mother about the inappropriate touching between M.F. and the stepfather.

M.F. recanted her claims, saying she was angry with her mother for not spending enough time with her, and denied making the diary entries. DCS wanted to interview G.W., but her mother refused. DCS then filed an emergency petition with the court to be able to interview the girl, based on I.C. 31-33-8-7 and 31-32-12. Those statutes make reference to interviews with the child subject to the investigation. G.W. never claimed to be abused.

The trial court granted the order, relying on the language that requires an assessment of the name and condition of the other children in the home when investigating an abuse claim.

Judges Terry Crone and L. Mark Bailey affirmed in In the Matter of G.W. (Minor Child); A.W. (Mother) and J.W. (Stepfather) v. The Indiana Dept. of Child Services, 07A01-1201-JM-6, interpreting I.C. 31-33-8-7 as applicable to a child who is not the subject of an abuse investigation. The majority pointed to the seriousness of M.F.’s allegations and that the two girls are close in age. Just because their mother vouched for G.W.’s safety doesn’t mean the DCS’ and the trial court’s concerns are unwarranted, he wrote.

Judge Patricia Riley’s dissent focused on the statutes in question. She believed the language did not apply to children who are not subject to the abuse investigation. The only route the DCS could take because A.W. refused to make G.W. available for a forensic interview is for DCS to file a certification by a physician that an emergency existed, which would allow the trial court to order the examination. The DCS did not do that.

“Although the majority invokes its ‘common sense’ in interpreting the statute, in essence, it just presented the DCS with a broad enlargement of its authority by effectively erasing the safeguards our Legislature granted to ‘other children in the home,’” she wrote. “I refuse to subscribe to the majority’s interpretation of ‘common sense.’”

 

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  5. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

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