Couple facing TPR, felony charges for ‘biblical’ discipline suing DCS, using RFRA as defense

A southern Indiana couple facing both criminal charges and the termination of their parental rights due to allegations of unreasonable discipline against their children are seeking to use Indiana’s controversial Religious Freedom Restoration Act to end, or at least pause, the litigation against them.

Scott and Cherry Blattert of Lawrence County sued the Indiana Department of Child Services this month, asking for declaratory and injunctive relief against the TPR case against them based on the religious protections outlined in RFRA. Meanwhile, Scott Blattert is also asking the Court of Appeals of Indiana to allow him to raise RFRA as a defense against a string of criminal charges.

The civil complaint filed Feb. 11 in Lawrence Circuit Court on behalf of both Scott and Cherry — the biological parents of 10 children — alleges DCS is infringing on their rights to religious expression by pursuing the termination of their parental rights based on their use of “biblical” child discipline.

Court documents filed by the state allege that, in 2019, a DCS investigation into a report of physical abuse uncovered a video showing Scott Blattert “repeatedly striking his 14-year-old daughter. In the video, Blattert appears to strike his daughter 25 times with the belt. He also punches her, pushes her down, and ‘elbow-strikes’ her to the back of the head. The video shows that other toddler-aged children were present in the room as this occurred.”

The children were removed from the home in October 2019 and were subsequently adjudicated as children in need of services. Scott was charged with felony counts of aggravated battery and strangulation, as well as eight counts of felony domestic battery. Cherry was charged with felony neglect and misdemeanor domestic battery. Those charges remain pending.

But in their civil complaint, the Blatterts allege Scott’s discipline of their children is not criminal, but rather “biblical.”

“In particular, Scott and Cherry believe that a father has discretion to determine the appropriate discipline for his children,” the complaint says. “Scott and Cherry draw this belief from the Book of Proverbs, especially Proverbs 13:24, Proverbs 22:15, Proverbs 23:13, Proverbs 29:15, and Proverbs 29:17. Scott and Cherry, following the Book of Proverbs, call this discretion of the father over the discipline of his children the ‘rod of correction.’”

According to the Blatterts, DCS throughout the CHINS case has “insisted that Scott and Cherry waive their right to remain silent,” and also insisted that they “renounce their Christian beliefs, founded upon the Holy Bible … .” Their refusal to do so, they allege, led to the filing of the TPR cases.

Those TPR cases, according to the Blatterts, violate Indiana’s RFRA law, which provides that the government cannot “substantially burden” a person’s exercise of religion without passing strict scrutiny.

“The Department of Child Services’ termination actions are serious burdens on Scott Blattert and Cherry Blatter’s religious exercise,” the complaint alleges, arguing strict scrutiny was not met in their case. “Indeed, it is hard to imagine more serious burdens except perhaps imprisonment or the death penalty.”

The Blatterts are seeking declaratory judgment that the TPR cases against them violate their rights under RFRA, as well as the award of costs and attorney fees. Additionally, they filed a motion for a preliminary injunction to stay the TPR proceedings while the civil case against DCS proceeds.

“If the Department is allowed to pursue the TPR Cases while the merits of the above-captioned cause are fully litigated, there is a very real risk that Scott and Cherry’s free exercise of religion and their parent-child relationships would be jeopardized further and possibly in even more drastic ways,” they argue in the injunction motion.

The parents are also seeking a change of venue from Lawrence Circuit Judge Nathan G. Nikirk under Indiana Trial Rule 76(B). That motion had not been ruled on at Indiana Lawyer deadline.

The civil case is Scott Blattert, Jr. and Cherry Blattert v. Indiana Department of Child Services, 47C01-2202-PL-000163.

Meanwhile in the Court of Appeals, Scott Blattert is urging the appellate court to allow him to raise a RFRA defense against the criminal charges.

According to his appellant’s brief, the Lawrence Superior Court determined that the prosecution against Scott was a substantial burden on his exercise of religion but was the least-restrictive means of furthering the compelling state interest of preventing child abuse, thus satisfying strict scrutiny.

Rather than raising a RFRA defense, the trial court said Scott could present evidence of his religious beliefs in the context of the parental privilege defense to battery laid out in Willis v. State, 888 N.E.2d 177 (Ind. 2008).

But Scott is arguing that the state does not have a compelling interest in preventing child abuse as it applies to him, and that the trial court failed to actually consider whether the prosecution was the least-restrictive means of furthering any state interest. He urged the Court of Appeals to adopt Judge Edward Najam’s dissent in Tyms-Bey v. State, 69 N.E.3d 488 (Ind. Ct. App. 2017).

The state, however, argues in its appellee’s brief that the trial court properly found that “the parental privilege is the least restrictive means of serving the State’s compelling interest in protecting children from physical abuse in this context,” asserting the trial court was concerned with the use of “unreasonable force” against Blattert’s daughter.

“Therefore, this prosecution falls within the exception to RFRA and provides Blattert no protection,” the state argues.

The interlocutory appeal was fully briefed on Dec. 21, 2021, and oral argument was not requested. The COA has not yet handed down a decision in Scott A. Blattert, Jr. v. State of Indiana, 21A-CR-1082.