I find it somewhat reassuring to see a Court of Appeal get it right when it comes to the issue of coercive intervention into family life. Such was the case in a ruling issued by the Indiana Supreme Court in In the Matter of S.D., Alleged to be a Child in Need of Services; J.B. v. Indiana Department of Child Services. The court issued its ruling on February 12 of this year.
The case pitted a mother who was determined to rely on her own efforts to provide for her children with the aid of her family against a department of social services that was determined to foist its services on her through the coercive intervention of the court by means of a CHINS adjudication.
For those unfamiliar with CHINS cases, the Indian Court of Appeals provides this description, drawn verbatim from the ruling with emphasis as provided in the original:
Child in need of services (CHINS) cases aim to help families in crisis – to protect children, not punish parents. Our focus, then, is on the best interests of the child and whether the child needs help that the parent will not be willing or able to provide – not whether the parent is somehow “guilty” or “deserves” a CHINS adjudication. But that help comes not by invitation, but compulsion – imposing the court’s “coercive intervention” into family life. And a CHINS adjudication may have long-lasting collateral consequences for the family. The intrusion of a CHINS judgment, then, must be reserved for families who cannot meet those needs without coercion – not those who merely have difficulty doing so.
Here, the evidence reflects that Mother had difficulty meeting the demands of a situation that would test the mettle of any parent – but not that she would be unable to correct her one lingering issue without the “coercive intervention of the court.” DCS’s desire to help this struggling family was understandable, but the facts simply do not justify subjecting this family to State compulsion. We therefore reverse the trial court.
“This CHINS case stems from Mother’s struggles in abruptly relocating to a new city to meet the challenges of a toddler’s serious medical crisis, while still providing for four other children,” the Court explained.
On March 26, 2012, the Mother took her then two-year-old child, S.D., to an emergency room in Gary because of rapid respiration. A series of hospital transfers and operations ensued.
S.D.’s four siblings remained with relatives in Gary while the Mother remained at the hospital with S.D. During the siblings’ spring break, the Mother “abandoned the family’s rental home and belongings in Gary – leaving everything behind and moving the whole family to Indianapolis to be near S.D.”
For several weeks, the family’s housing was transient, and the Mother struggled to meet the whole family’s needs. At one point – perhaps believing that departments of social services are helping institutions – she consented to the temporary placement of the four siblings into DCS’ care so that she could focus on S.D.’s treatment. What happened next would come as no surprise to family advocates.1
Accordingly, DCS took custody of the children in early May and initiated CHINS proceedings over all five of them, based on S.D.’s special medical needs and Mother’s lack of steady housing and other needs for the children.
The Mother managed to have the four siblings returned to her, and a CHINS finding regarding them reversed, however judge Marilyn Moores of the Marion Superior Court, Juvenile Division, found S.D. to be “in need of services” by virtue of the medical condition.
THE HELPING HAND
As the Court explains it, the Mother was somewhat uncooperative. “She refused to apply for a Postal Service job DCS identified, choosing instead to pursue a hospitality and catering position (yet failing to obtain the ID she needed for her application). Moreover, she rejected DCS’s urging to apply for rent assistance from the township trustee – and even cancelled an appointment DCS had made on her behalf for that purpose – because she had instead paid her bills with support from friends and family,” the Court explained.2
Significantly, the Court saw through the ruse of the helping hand offered by the department – perhaps recognizing just how wide that safety net of unwanted aid may have grown over time. As the Court explained it:
we believe that any reasonable view of those facts must also account for Mother’s larger situation – an impoverished single mother of five, who was forced to abruptly uproot and relocate to a new city to tend to her toddler’s life-threatening illness, while continuing to provide for her other children. Either the relocation or the medical crisis, standing alone, would seriously strain any parent. Yet even though some of Mother’s decisions were questionable, we cannot say that she was less effective under duress than any other similarly situated parent of a special-needs child—and we are unwilling to say that every special – needs child of a low-income parent is necessarily “in need of services.”
HELPING OR HINDERING?
Most significant is that the Court of Appeal was able to recognize that the department of social services may have hindered as much as it had claimed to have helped the Mother, in this particular instance. As the Court explained, “Mother’s most significant failure – to complete the home-care simulation – appears as much a product of DCS’s intervention as it is a sign of her need for that intervention. Mother’s initial plan had been for Grandmother to serve as the secondary caregiver, and it was only because of DCS’s disapproval that Mother had to go “back to the drawing board” to recruit someone else to fill that role. She did not do so until a few days before the fact-finding hearing, but did so nevertheless. In sum, she was still one step away from S.D. returning home – but only one step, and one in which the delay was at least partly a matter of DCS’s own doing.”
The Court continued on to say: “And though the State’s intervention enabled some of her progress, such as the ability to renovate the house while the children were out of her care, none of the State’s actions compelled her accomplishments. Though the evidence shows she had difficulty completing the last step of medical training, we cannot say she was unwilling or unable to do so without the court’s compulsion, and so the State’s coercive intervention into the family cannot stand.”
After the Court of Appeal granted transfer of this case, DCS moved to dismiss the appeal, alleging it was moot because S.D. has been returned to Mother’s care, the CHINS case has been closed, and no effective relief could be granted. The Court notes that “Mother disagrees, emphasizing that a CHINS finding can have harmful collateral consequences for the parent, and that reversal would grant Mother real relief from those consequences. We agree with Mother.”
The Court noted that “the State may terminate parental rights if a child has been adjudicated CHINS on two prior occasions, without proving either that the conditions resulting in a child’s removal will not be remedied or that continuing the parent-child relationship threatens the child’s well-being. And a prior CHINS finding may have adverse job consequences as well, such as precluding Mother from employment with any DCS contractor.”
The court also noted that a CHINS finding may preclude the Mother from become a licensed foster parent. As the finding may have held long-lasting consequences, the Court took the case on, ultimately concluding:
Reversal cannot change the efforts Mother expended in complying with the CHINS case, but it still affords her meaningful relief by lifting those collateral burdens. We therefore decline to find the case moot.
By the time of the disposition, the Mother was no longer in need of the department’s help, according to the lower court’s ruling, thus: “In view of that judgment, the remaining evidence fails to show that Mother was likely to need the court’s coercive intervention to complete that final item – and when that coercion is not necessary, the State may not intrude into a family’s life.”
Kenneth Wooden. Executive Director of the National Coalition for Children’s Justice, testified before a congressional committee during the mid-1970s saying that he had traveled the country for some three years, taking an inventory of juvenile detention facilities, investigating conditions in residential child care institutions, including county jails and lock-ups, juvenile correctional facilities and institutions for the emotionally disturbed. Wooden explained his findings to the committee in great detail:
One of the surprises which I encountered in my investigation was the large number of youngsters locked up and being denied their basic rights even though they had committed no crime. It has been my experience that there is little difference in the background and characteristics of these children regardless of whether they have been labelled “dependent,” “neglected,” “status offender,” “CHINS” (Children in Need of Supervision), or “emotionally disturbed.” There is some evidence that the number of youngsters labeled “neglected and dependent” warehoused in large institutions is declining but the numbers can be misleading. It is my impression that a shell game is being played with the labeling process, and that dependent children, relabeled “disturbed” or “hard to place,” are being shuttled off to private, often profit-making institutions in ever greater numbers. Instead of orphanages, we now have so-called “treatment centers”–a “growth industry” which feeds on unwanted children just as the nursing home business depends for its existence on large numbers of the unwanted elderly. And, as is the case with the elderly, the systematic neglect and maltreatment of children in these facilities is being subsidized by the federal government.
The Indiana case presents a welcome one among a sea of adverse legal determinations by courts against families for little more than the expression of the desire to face challenging circumstances free of the imposition of social programs in which the parents do not wish to participate.
That the CHINS disposition is little more than a back door for departments to gain entry into the lives of families in cases in which they are unable to produce “abuse” or “neglect” disposition – even under the broad definitions that they are given – is beyond serious debate. Indeed, Indiana’s Courts have themselves issued a number of adverse ruling based, at least in part, on the parents lack of willingness to “cooperate” with forced offers of “help” and “assistance” from the department of social services.3
1. There has historically been a tension between “family advocates” and departments of social services. A comprehensive study conducted by the Children’s Defense Fund identified “a pervasive, implicit anti-family bias” shaping decisions at all decision points in the child welfare system. For a discussion of the Children’s Defense Fund report see the dissent of Judge Spaeth in In Re Kunkle, 265 Pa.Super. 605 , 402 A.2d 1037 (1979). See also the testimony of Jane Knitzer, Children’s Defense Fund, Amendments to Social Services, Foster Care, and Child Welfare Programs, Subcommittee on Public Assistance and Unemployment Compensation, Committee on Ways and Means, U.S. House of Representatives, March 22 and 27, 1979 (describing “an antifamily bias that pervades the policies and practices of the child welfare system”). The CDF study devoted considerable attention to courses of action that “advocates” should take in order to reform the child welfare system, however a meaningful, effective and organized coalition of such family advocates has yet to materialize.
2. It is well beyond dispute that child welfare agencies loathe “uncooperative” parents. See for example Georgia’s Social Services Manual, Child Protective Services, Chapter 2100, Section III, 2104.20, under the heading “Family Refuses to Cooperate” (describing actions to take including obtaining a court order to gain access to a home for purposes of conducting an investigation); Katherine C. Pearson, Cooperate or We’ll Take Your Child: The Parents’ Fictional Voluntary Separation Decision and a Proposal for Change, 65 Tennessee Law Review (1998); Amy Sinden, Why Won’t Mom Cooperate: A Critique of Informality in Child Welfare Proceedings, 11 Yale J.L. & Feminism 339 (1999) (emphasizing the key role that “cooperation” plays in child welfare decision making). See also Nicholson v. Williams, 203 F. Supp. 2d 153, 215 (E.D.N.Y. 2002) (Defendants admitted that some child removals “are never brought before a court because mothers will usually agree to attend whatever services ACS demands once their children have been in foster care for a few days”).
3. Indiana Courts have frequently upheld terminations of parental rights with parental lack of cooperation as among the considerations. See Jackson v. Madison Cnty. Dep’t of Family & Children, 690 N.E.2d 792, 793 (Ind. Ct. App. 1998) (mother “was uncooperative during her psychological examination and unrealistically portrayed her herself as extremely virtuous”); Carrera v. Allen County Office of Family and Children, 758 N.E.2d 592 (Ind.Ct.App. 2001) (upholding termination where mother “was uncooperative in accepting assistance in obtaining employment”); Prince v. Dep’t of Child Servs., 861 N.E.2d 1223, 1230 (Ind. Ct. App. 2007) (“Failure to cooperate with those providing services coupled with failure to improve the unacceptable home conditions has been held to support a finding that there is a reasonable probability that the conditions that led to the children’s removal will not be remedied”).