In the Matter of My.B. and M.Q. Children in Need of Services;
Indiana Department Of Child Services, Appellee(s). M.B. (Father), Appellant(s),
Court Case Nos. 49D09-1803-JC-714 49D09-1803-JC-715
Loretta H. Rush Chief Justice of Indiana
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.
duly advised, the Court DENIES the petition to transfer.
J., Slaughter, J., and Goff, J., vote to deny transfer.
J., dissents to the denial of transfer with separate opinion
in which Rush, C.J., joins.
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.
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.
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.
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
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the
coercive intervention of the court.
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
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