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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.