Appeals court reversal reunites mother and children

September 5, 2014

A Grant County trial court abused its discretion in ordering the appointment of guardians for two children, the Indiana Court of Appeals ruled Friday, reversing a guardianship order and instructing the trial court to reunite the children with their mother.

The Department of Child Services “has not presented clear and convincing evidence that Mother is currently unable to provide a safe home for the children or that the guardianships are in the children’s best interests,” Judge Edward Najam wrote for the panel in In the Matter of B.W. and A.K., Alleged to be Children in Need of Services, A.C. (Mother) v. Indiana Department of Child Services, 27A05-1401-JC-29.

“We hold that the trial court abused its discretion when it appointed guardians for the children. We reverse the trial court’s judgment and remand with instructions that the court reunite the children with Mother.”

The department intervened after B.W., then less than 9 months old, was taken to a pediatrician in 2011 with a swollen arm. B.W. was diagnosed with four fractures that doctors said were the result of child abuse. No one was ever charged, and the record reveals that because mother refused to take a polygraph test, the trial court had concerns that she may have been protecting an abuser.

But the record also shows mother successfully completed every requirement of the 22-part parental participation plan ordered by the trial court more than two years ago.   

“We agree with Mother that the trial court’s conclusion, that the appointment of guardians over the children is in the children’s best interests, is clearly erroneous. First, it is well settled that polygraph examinations are notoriously unreliable,” Najam wrote. “…DCS’s assertion that Mother’s refusal to take a polygraph demonstrates that she is incapable of providing a safe home for the children is unfounded.

“Second, while Mother challenges the trial court’s order on permanency and not the underlying CHINS determination, we find the following appropriate to the issue on appeal: It is well established that 'a CHINS adjudication may not be based solely on conditions that no longer exist. The trial court should also consider the parents’ situation at the time the case is heard,'" the panel held, citing In re R.S., 987 N.E.2d 155, 159 (Ind. Ct. App. 2013).

"Here, as the CASA’s testimony illustrates clearly, DCS has been focused solely on understanding how B.W. was injured and the conditions that existed at the time of the children’s removal from Mother’s custody. DCS presented no evidence to demonstrate any conditions existing at the time of the final permanency hearing to justify the permanent removal of the children.

"… In sum, there is simply no clear and convincing evidence that the children would be in any danger if they are reunited with Mother.
Mother’s failure to explain the cause of B.W.’s injuries is not evidence of a present inability to provide a safe home for the children," the panel held.


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