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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. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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