Many people are unaware that States can take a child away from parents, despite SCOTUS holding a parent’s interest in upbringing of her child is perhaps the oldest of the fundamental liberty interests recognized by the courts. Traxel v. Granville, 530 U.S. 57 (2000).

Indiana has two procedures, that work in tandem. First is to ask a juvenile court to find a Child in Need of Services (“ChINS”). Second, after a child has been out of a parent’s custody for 15 of the most recent 22 months, is to seek to terminate parental rights. (“TPR”).

The agency tasked with these actions is the Department of Child Services (“DCS”). There are a lot of problems with DCS and with the system of ChINS and TPR actions. Some have to do with the dynamics of parents’ rights and the functions of the State. I’ll use a hypothetical.

DCS receives a call about Mom (and/or Dad, but here I’ll use Mom) a DCS caseworker is sent to Mom’s home to investigate. If the caseworker finds Mom has neglected or endangered the health or safety of the child, a report is filed.

DCS can offer an informal adjustment (“IA”) to Mom, i.e., Mom goes through counseling or other services to remedy the neglect or endangerment. I.C. 31-34-8-1, et seq. If Mom completes what has been recommended, all is okay and the file is closed.

If Mom fails to complete the IA successfully, or if the neglect or endangerment is significant, DCS can remove the child and seek permission of the juvenile court to file a ChINS petition. A parent’s rights in ChINS proceedings are subordinate to the child’s best interest.

In court, DCS has a burden to prove its case by a preponderance of evidence. I.C. 31-34-12-3, i.e., more likely than not. In many cases parents admit to the allegations, otherwise hearing is had before the juvenile court. If a true finding is made, Mom engages in services.

It is not uncommon for Mom to face criminal investigation in regard to child’s removal. As an example: child is removed because Mom smokes pot, so Mom faces a charge of possession. Mom can invoke her right against self-incrimination, but custody of her kid’s at risk.

Another problem has to do with “services.” Services can include a parenting assessment, a psych eval, a substance abuse eval, and any recommendations from those. There can be three or four service providers involved. Mom can be ordered to find full-time employment.

At the same time, if child is taken from the home, Mom might have visitation with her child supervised. That means a service provider sits and watches, and takes notes, as Mom tries to have a visit with her child.
It should be no surprise that, with multiple services ordered, multiple meetings during the week and the stress of DCS in her life, Mom might act “listless” at visits. Worse, she might fall asleep. You might say “If she cares enough abhout her child, she wouldn’t fall asleep.”

She cares so much about her child, in fact, that she’s exhausted, is human, and can’t help but fall asleep. The worst thing could lie ahead: if she does not successfully complete services, the State must seek TPR - termination of parental rights.

In TPR the burden of proof is by clear and convincing evidence. 31-34-12-2, a higher standard than that of preponderance in ChINS. The problem is that the evidence from ChINS is there already. There is no right to jury in these proceedings.

Article 1 of Indiana’s Constitution provides contains our Bill of Rights, and section 20 states: “In all civil cases, the right of trial by jury shall remain inviolate.” As expansive as that language seems, this right has been construed as limited to actions triable by jury at common law. “Because no special judicial system for juveniles existed at common law ... juvenile matters obviously were not triable by jury.” In the Matter of E.P., 653 N.E.2d 1026, 1030 (Ind.Ct.App. 1995).

Parents need to know their rights, particularly since TPR is absolute - the kids are taken and all rights are severed. In the meantime I want to look at whether the restriction of the right to jury to those matters triable by jury at common law.