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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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  1. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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