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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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