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Mother loses appeal of CHINS finding

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The Indiana Court of Appeals rejected a mother’s argument that child in need of services findings should be vacated because the judge in the matter should not have been able to make a negative inference from her invocation of her Fifth Amendment right not to testify.

The Department of Child Services filed a petition alleging that A.G. was a CHINS after several doctors had concerns that his mother M.K. was causing the baby’s cyanotic episodes, which caused his skin to turn blue, his eyes to roll back in his head and his body to stiffen. A.G. was diagnosed with mild to moderate pulmonary hypertension, which is common among his father’s relatives. But M.K. was the only one to witness a cyanotic episode. The doctors were concerned if he was left in her care, he could die.

When A.G. was removed from M.K.’s care, he only had one episode, which was attributed to his diagnosis.  

While the CHINS proceeding was pending, an evaluation by a board-certified clinical psychiatrist determined that mother is afflicted with Factitious Disorder by Proxy and is responsible for A.G.’s life-threatening cyanotic episodes.

After A.K. was born, the child was also removed from mother’s care and a CHINS petition filed.

During the CHINS proceedings, M.K. refused to testify. The children were adjudicated as CHINS, during which the trial court entered the conclusion, “Mother’s refusal to testify in the state’s case in chief draws a negative inference that Mother was concerned about incriminating herself through her testimony, further indicative of mother’s guilt.”

M.K. only appealed this finding, arguing the rule in Gash v. Kohm, 476 N.E.2d 910, 913 (Ind. Ct. App. 1985), should not apply in CHINS proceedings. The rule outlined in Gash does not prohibit a trier of fact in a civil case from drawing adverse inferences from a witnesses’ refusal to testify.

In In the Matter of A.G. and A.K. Children Alleged to be in Need of Services, M.K. v. Indiana Department of Child Services, 82A05-1306-JC-297, the Court of Appeals found the mother could not support her contentions or make a cogent argument based on public policy or constitutional law. Since she doesn’t challenge the remainder of the findings and conclusions, the adjudication stands.
 

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  1. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  2. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  3. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  4. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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