COA reverses dismissal of CHINS case based on ‘absurd assertion’ that coercive intervention was no longer necessary

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In a case accusing both the trial judge and the Indiana Department of Child Services of “inexplicably ignor(ing)” the best interests of a child, the Court of Appeals of Indiana has reversed the dismissal of the CHINS case.

The case — In the Matter of Z.H. (Minor Child Alleged to be a Child in Need of Services); Hamilton County GAL/CASA Program v. Indiana Department of Child Services, 23A-JC-1120 — began in August 2022, when DCS filed a petition alleging children Z.H., X.H., Lm.H and J.H. were CHINS due to neglect and physical abuse. Specifically at issue on appeal is Z.H., who was born in 2009.

According to the DCS petition, the children and their mother were living in a hotel in July 2022 while their house was being repaired following fire damage. The children ran away from their mother because her boyfriend “hits/whips them with cords, and [Mother] also hits them.”

A family case manager spoke with the mother and children at the hotel on several occasions, observing Z.H. with “busted blood vessels in her right eye” on one occasion. DCS alleged the mother had hit Z.H. with a computer, although the mother denied that allegation.

The mother had substantiated reports of child abuse from both 2020 and 2021, as well as substantiated reports of the children being removed while they were living in Georgia. She was also charged with Level 6 felony domestic battery alongside the instant CHINS case, and that case is still pending.

The children were eventually placed with their grandmother, L.M., and a guardian ad litem was appointed. The GAL’s report recommended that Z.H. and the mother attend therapy together, with a goal of working toward unsupervised visitation.

But at a supervised visit in January, Z.H. refused to come out of her room.

The following month, the grandmother asked that the children be placed with their mother while she attended to a family emergency, but the GAL would not agree without “firm safety measures agreed upon and monitored.” DCS presented the mother with a safety plan, but the GAL was never told whether the mother agreed to the terms, which included using proper discipline, not having other adults living in the home and ensuring Z.H. received mental health services.

The children were placed back with their mother.

According to the Court of Appeals, DCS’s account of what happened “is somewhat different than the GAL’s.”

On Feb. 20, DCS moved for a trial home visit, alleging that the children had been placed in “foster care” and that the mother had “made progress in this case and [was] in compliance with the case plan.”

According to the GAL, on March 5, the mother spanked Z.H. with a belt for failing to follow “bedtime rules.” Z.H. also claimed the mother had choked her and told her she could not lay on the bed due to her poor behavior.

Z.H. then ran away, prompting the mother to look for her. When she found Z.H., the mother, who was in her car, “drove her car onto the sidewalk and nudged [Z.H.] with the car.”

Z.H. ended up staying with her sister, and the mother initially refused to provide any of her personal items. When she did provide some of those items, some had been cut, and Z.H. witnessed her mother “slice her backpack strap with a knife.”

“Z.H. later told the GAL, ‘Why do you all keep giving me back to [Mother]? She doesn’t want me, and she’s abusive,’” according to the COA.

On April 4, DCS informed the GAL that it would be “recommending case closure as Mother has completed all of the services requested.” Z.H. would stay with her sister, DCS said, while the other children would stay with their mother.

The GAL expressed concern about the plan and recommended that services continue for the children.

DCS then filed its motion to dismiss the CHINS case against the mother, and the GAL objected. No factfinding hearing had yet been held with respect to the mother.

The trial court summarily dismissed the CHINS cases regarding the other children at a hearing on the motion to dismiss, then issued an order also dismissing Z.H.’s case after hearing testimony from both DCS and the GAL.

Prior to issuing its order, the trial court had said, “I think there’s a lot more [DCS] could do for [Z.H.]. … So I think that there are services that could be provided to her, but I’m also sitting here and we’re pre-fact-finding as to Mom.” Then in its order, the court noted, “There has not been an adjudication as to Mother in this cause.”

The GAL appealed, arguing the trial court erred in determining that dismissal was mandated because Z.H. had not yet been adjudicated a CHINS as to the mother. The COA agreed.

“If the Department of Child Services … and the trial court do not act in the child’s best interest, who will?” Judge Elizabeth Tavitas wrote. “In this case, we reiterate the fundamental purpose behind the statutes governing children in need of services … cases — the protection of children — and we highlight the crucial role guardians ad litem and court appointed special advocates play in advocating for the children’s best interest. That role comes into sharper focus here, where it is apparent that the Department of Child Services … and the trial court inexplicably ignored the best interests of the child.”

Looking at Indiana Code § 31-34-9-8, the appellate court ruled, “A plain reading of the statute reveals that the Indiana General Assembly did not intend for the filing of a motion to dismiss to mandate dismissal of a CHINS case. Rather, the General Assembly intended for trials courts to review the reasons proffered in support of dismissal in light of the evidence and allegations and then determined whether dismissal is in the child’s best interests.

“In other words,” the court continued, “the decision regarding whether to dismiss the CHINS case rests in the trial court’s sound discretion.

“… While we ordinarily ‘presume trial courts know and follow the law,’ we will overlook this presumption ‘if the trial court’s order leads us to conclude that ‘an unjustifiable risk exists that the trial court did not follow the applicable law,’’” Tavitas wrote, citing In re Paternity of A.R.S., 198 N.E.3d 423, 431 (Ind. Ct. App. 2022). “We find that to be the case here.”

For its part, DCS argued that it “no longer had evidence that [Z.H.] was endangered or that coercive intervention of the court was necessary.” But the appellate court disagreed.

“First, the trial court appears to have determined that it had no discretion regarding whether to dismiss the CHINS case, and as a result, the trial court failed to determine whether dismissal was in Z.H.’s best interests,” Tavitas wrote. “Moreover, DCS’ assertions are unsupported by the record.

“… The allegations against Mother give this Court great pause, and we cannot accept DCS’s assertion that Z.H. is no longer neglected and/or endangered,” she continued. “Furthermore, though Mother agreed to allow Z.H. to stay with Sister, this informal agreement hardly constitutes a sufficient permanency plan, as DCS contends.

“… Finally, DCS’s absurd assertion that ‘there was nothing more that it could do’ hardly supports the trial court’s dismissal order. Indeed, the trial court opined just the opposite, stating, ‘I think there’s a lot more [DCS] could do for [Z.H.].’ DCS cannot abandon children in the naïve hope that everything will just work out when all indications show otherwise, and we cannot accept DCS’s assertion that the trial court did not abuse its discretion by dismissing Z.H.’s CHINS case.”

The case was thus remanded for a best-interests determination as to dismissal of Z.H.’s case.

Judges L. Mark Bailey and Dana Kenworthy concurred.