Do I need an attorney if I am contacted by DCS about my children? Yes. Your right to parent your child is a fundamental right, guaranteed by the Due Process Clause of the Fourteenth Amendment. But, just like any other right in life, it is not absolute. For example, parents can discipline their children (known as the parental privilege) but do not have carte blanche to abuse or neglect their children. When a child is in a detrimental home environment or is found not having their basic needs met, then the State can become involved to protect the child. These questions are where and what are the limits on the Indiana Department of Child Services (DCS) involvement and decisions; this was addressed by the Court of Appeals in its recent decision in Matter of M.W.1 This blog covers why, without counsel, your family and right to parent may be terribly disrupted by grave missteps by DCS and what you can do to protect your rights.2
In Matter of M.W., the Indiana Court of Appeals reversed a trial court’s finding a child with behavioral problems was a Child in Need of Services (CHINS) in a case brought by DCS. In essence, the child in question had behavioral issues the mother was addressing as well as possible but was still adjudicated to be CHINS. Some of the key facts: In early 2018, the two teenage sisters got into a physical altercation. Their Mother, unable to separate the two girls, called the police for assistance. Following the altercation, a CHINS case was opened; one of the sisters was placed with a family member and the other sister in emergency shelter care. During the pendency of this CHINS action, Mother voluntarily participated in all programs and services that DCS requested. Shortly thereafter, the sister who was placed with a relative was returned to Mother’s care. Although Mother and the child in the emergency shelter asked time and again to be reunited, such request was denied to this Mother who had done all DCS has asked her to do.
During the CHINS fact-finding hearing (trial), several DCS caseworkers reported that Mother was a fit parent, with one saying that Mother exhibited “great parenting skills.” There was no evidence that showed the child was in danger in Mother’s care, but the child was still found to be a CHINS. In reversing the trial court’s decision, the Court of Appeals reiterated the importance of the family, and how the State’s interference with such should be limited to appropriate situations. The Court went on to highlight the Supreme Court’s interpretation of the CHINS statute, specifically stating that there are “three basic elements [for CHINS finding]: that the parent’s actions or inactions have seriously endangered the child, that the child’s needs are unmet, and (perhaps most critically) that those needs are unlikely to be met without State coercion.” In admonishing DCS, the Court of Appeals stated that “[q]uite frankly, we are stunned that the juvenile court found Child to be a CHINS. There is a dearth [or lack] of evidence supporting a conclusion that her mental or physical condition was seriously impaired or seriously endangered as a result of anything done or not done by Mother.”
Unfortunately, as this case and as headline news shows, cases like these occur too often in Indiana which is why skilled trial counsel is needed in defending against a CHINS case to minimize or eliminate sometimes gross missteps by DCS as it relates to you and your family. Finding yourself in the middle of a CHINS proceeding can be intimidating and frustrating. Advocating your legal rights and fighting for your children by obtaining counsel may seem unnecessary since DCS is tasked with protecting children and families. However, as this case demonstrates, that may not be the case. Your job as a parent in this situation begins with retaining skilled trial counsel, and if necessary later, appellate counsel, if DCS comes. Such counsel will know the status of developments in the caselaw, like this case, to protect you, your rights and your family. Also, taking the time to know the law, such as reviewing this blog to learn about the law, just as using your right to counsel, is the key to protecting your rights as a parent, as well as being an engaged citizen in our participatory system of government. This blog post on a key new case and warning to you about abuses of DCS is written by attorneys at Dixon & Moseley, P.C. who handle all aspects of CHINS proceedings throughout the state. This blog is written for educational purposes only. It is not intended as legal advice or a solicitation for services. It is an advertisement.
- In Matter of M.W., 18A-JC-1534, (Ind. Ct. App. 2019).
- A national child advocacy organization filed a federal class-action lawsuit against Marion County, Lake Scott County DCS alleging violations the rights of abused and neglected children by failing to provide them legal counsel in CHINS and TPR cases on Tuesday, February 5, 2019. Nicole K., et al v. Marion County, et al, Case No.: 3:19-cv-00025.
