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In re My.B.

Supreme Court of Indiana

July 24, 2019

In the Matter of My.B. and M.Q. Children in Need of Services;
v.
Indiana Department Of Child Services, Appellee(s). M.B. (Father), Appellant(s),

          Trial Court Case Nos. 49D09-1803-JC-714 49D09-1803-JC-715

          ORDER

          Loretta H. Rush Chief Justice of Indiana

         This matter has come before the Indiana Supreme Court on a petition to transfer jurisdiction, filed pursuant to Indiana Appellate Rules 56(B) and 57, following the issuance of a decision by the Court of Appeals. The Court has reviewed the decision of the Court of Appeals, and the submitted record on appeal, all briefs filed in the Court of Appeals, and all materials filed in connection with the request to transfer jurisdiction have been made available to the Court for review. Each participating member has had the opportunity to voice that Justice's views on the case in conference with the other Justices, and each participating member of the Court has voted on the petition.

         Being duly advised, the Court DENIES the petition to transfer.

          Massa, J., Slaughter, J., and Goff, J., vote to deny transfer.

          David, J., dissents to the denial of transfer with separate opinion in which Rush, C.J., joins.

          David, Justice, dissenting.

         I respectfully dissent from the denial of transfer in this case as I believe transfer should be granted and the trial court reversed. Here, Mother and Father had two children together. Pursuant to their divorce agreement, the parties shared legal custody and Mother had sole physical custody with Father having parenting time pursuant to the guidelines. Mother has subsequent children from a different father and has been the subject of child in need of services (CHINS) actions. She has mental health issues and a history of substance abuse. Unfortunately, Father was not in the picture for the parties' children for several years as Mother interfered with his access to the children.

         In the latest CHINS action, the children were removed from Mother's care because she was under the influence of drugs and was suffering from paranoid delusions. Additionally, the home and the children's belongings were in poor condition. All of the children, including Father's, were placed in foster care. Father was permitted to have supervised visits with his children.

         During a June 2018 fact-finding hearing, the court found all Mother's children to be CHINS. With regard to Father's children, the Court found that because he "has not taken any steps to maintain contact with his children, the intervention of the [c]ourt is needed to assist in developing his relationship with his children." (App. Vol. II at 147.) Father appealed and challenged the sufficiency of evidence underlying the CHINS adjudication for his two children and the Court of Appeals affirmed.

         I would reverse the lower court, give custody of the children to Father and close the CHINS case as it pertains to Father. I do not believe that DCS met the statutory guidelines for determining whether the children were CHINS. Indiana Code section 31-34-1-1 (2018) provides:

A child is a child in need of services if before the child becomes eighteen (18) years of age:

(1) the child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and

(2) the child needs care, treatment, or rehabilitation that:

(A) the child is not receiving; and

(B) is unlikely to be provided or accepted without the coercive intervention of the court.

         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. On the contrary, the evidence shows that Father has the ability and means to care for the children, including providing them with needed counseling. The record reflects that Father was living in a five-bedroom house with his wife and stepchildren where there was room for his two children with Mother. He was employed full time and the family had sufficient income to support the children.

         I agree with Father that his lack of prior contact with the children alone is not enough for a CHINS finding with regard to him. While DCS and the lower courts were critical of his lack of contact with the children and his acknowledgement that he knew Mother was unfit but did not take more aggressive action to ...


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