‘I do not understand’: David, Rush publish sharp dissent to CHINS transfer denial

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Indiana Lawyer on 7/25/2019 by Olivia Covington

In a published dissent to a denial of transfer, two Indiana Supreme Court justices had sharp words for the Department of Child Services and the lower courts that, according to the dissent, did not take advantage of an opportunity to “make things right” for a father and his two children.

Majority justices Mark Massa, Geoffrey Slaughter and Christopher Goff voted to deny transfer to In Re The Matter of: My.B. and M.Q., Children in Need of Services, M.B. (Father) v. Indiana Department of Child Services, 18A-JC-2159, but Justice Steven David penned a three-page published dissent, joined by Chief Justice Loretta Rush.

In the Marion County children in need of services case, Father M.B. appealed the adjudication of his two children, M.Q. and My.B., as CHINS, arguing there was insufficient evidence to support the finding that his children would not receive the care they needed without court intervention. The dissenting justices agreed with the father.

“While there is no doubt that Mother was incapable of caring for the children without the coercive intervention of the court, there is no evidence to suggest Father is unable to provide the children with necessary food, clothing, shelter, medical care, education or supervision and that the coercive intervention of the court is needed,” David wrote in the Wednesday dissent.  “On the contrary, the evidence shows that Father has the ability and means to care for the children, including providing them with needed counseling.”

M.B.’s children, My.B. and M.Q., have been involved in three Department of Child Services proceedings since M.B. and their mother, K.A., divorced in March 2012. That same month, a CHINS action was filed after K.A.’s third child — the daughter of another man, M.A. — was born with THC and cocaine in her system.

In July 2017, the family again came to DCS’ attention when M.A. and K.A., under the influence of an illicit substance, were involved in a car wreck with all of K.A.’s children. The children were adjudicated as CHINS in March 2018, when a family case manager was called to the home after K.A. claimed M.B. was holding the children hostage in the attic.

“The court found that, in March 2018, Mother and the children came to the attention of DCS based on a report alleging Mother was suffering from paranoid delusions; that FCM (Bailey) Sandlin observed the condition of the home; and that, on the night of FCM Sandlin’s assessment, Mother appeared to be under the influence of an illicit substance, displayed bursts of aggressive behavior, attempted to lunge at FCM Sandlin and had to be restrained by law enforcement, yelled to the children to come down and save her from the police, and repeatedly yelled for her children to look at her while she was handcuffed and seated on the ground,” the Indiana Court of Appeals wrote in a February memorandum decision affirming the CHINS adjudication.

“The court further found that, upon removal, the children’s belongings were extremely dirty, the children did not have matching shoes, none of their belongings could be transported with them due to being in poor condition, and the children had to be wrapped in blankets,” the COA said.

At a subsequent fact-finding hearing, M.B. testified that he had believed K.A. was an unfit mother for four to five years. He also testified that, at the time of the hearing in June 2018, he had not seen the children since July 2017, claiming K.A. — who has been diagnosed with bipolar disorder – had kept him away by hanging up on him, having him arrested and obtaining restraining orders, among other tactics.

M.B., who at that point had joint legal custody of the kids, then told the court that he wanted full custody. In his dissent, David said he would have granted that request because DCS did not meet the statutory guidelines for proving a CHINS allegation against the father.

“First, a CHINS adjudication may not be based solely on conditions that no longer exist,” David wrote. “… Here, while Father may have been out of the picture prior to the present CHINS action, once it was filed, he actively participated in supervised visits and sought custody of his children.

“… I do not understand why DCS would thwart the efforts of a man willing and able to parent his children — regardless of his prior absence — and instead leave them separate from each other in foster care.”

Further, David said the “unfortunate circumstances that prevented Father’s involvement in his children’s lives” — threats of arrest, protective orders and even a physical altercation — should not be held against M.B. The dissenting justice likewise said the CHINS adjudication has a punitive impact on the father, as his name is “entered into the state’s child welfare system as being substantiated for neglect and/or abuse.”

“I do not understand the lower courts’ conclusion that the CHINS case should continue and that Father only be given supervised visits when the Father did not abuse or neglect the children and was not the reason the CHINS case was opened,” David wrote in the dissent. “At the very least, the children should have been placed with him and not in foster care during the pendency of the case because our statute requires that children be placed in the least restrictive and most family like setting.

“… Mother denied Father access to his children and now DCS is limiting his access,” the dissent continued. “I do not believe this is what is in the best interest of these children nor do I believe that noncustodial parents should face such a battle to gain custody of their children when the custodial parent is not capable of caring for them and took steps to deny the noncustodial parent access. It is unfortunate Father was denied his children and the children their Father for so long.”

Thus, David and Rush would have reversed, awarded custody to M.B. and closed out the CHINS case.