Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016 Page 1 of 32

ATTORNEY FOR APPELLANT

Matthew J. McGovern

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

James D. Boyer

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of F.S., T.W., 

M.F., and B.F. (Minor Children)

 and

B.S. (Mother),

Appellant-Respondent,

v.

Indiana Department of Child 

Services for Crawford County,

Appellee-Petitioner.

May 12, 2016

Court of Appeals Case No.

13A01-1505-JM-363

Appeal from the Crawford Circuit 

Court

The Honorable Kenneth Lynn 

Lopp, Judge

Trial Court Cause No.

13C01-1503-JM-18

13C01-1503-JM-19

13C01-1503-JM-20

13C01-1503-JM-21

Robb, Judge.
Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016 Page 2 of 32

Case Summary and Issue

[1] B.S. (“Mother”) appeals the trial court’s order, based on authority granted by 

Indiana Code section 31-33-8-7, compelling her to allow the Crawford County 

Department of Child Services (“DCS”) to interview two of her children. She 

contends the statute is unconstitutional as applied to her because it allowed the 

trial court to compel the interviews based solely on the uncorroborated 

accusations of an undisclosed informant, violating her substantive and 

procedural due process rights. Concluding the statute as applied in this case 

violated Mother’s right to raise her family free from undue interference by the 

State, we reverse.

Facts and Procedural History1

[2] B.S. (“Mother”) is the mother of four children, T.W., F.S., M.F., and B.F. (the 

“Children”). D.F. (“Father”) is the father of the two youngest children. 

Mother, Father, and all four children live in a trailer in Crawford County. At 

the time of the following events, Mother was on probation for a theft 

conviction. In addition, the household had a history with the Crawford County 

Department of Child Services (“DCS”), including a child in need of services 

 

1 We heard oral argument in Indianapolis on January 20, 2016. We thank counsel for their informative oral 

presentations.
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(“CHINS”) case that had been closed in early January of 2015. See Appellant’s 

Appendix at 15 (showing prior DCS contacts in 2007, 2011, and 2014).

[3] On March 2, 2015, an unnamed source2contacted DCS to report possible abuse 

or neglect of the Children. Specifically, the caller reported incidents of 

domestic violence between Father and Mother occurring in the presence of the 

children; daily drug use and possible drug dealing by both Father and Mother; 

an unsafe home environment; and multiple school absences by F.S. See id. at 

14-15. 

[4] Brenda Hogan, a DCS family case manager, initiated an assessment by making 

a home visit. Mother and two of the Children were home at the time. Hogan 

toured the house and did not see any evidence of drugs or signs of drug use in 

Mother. The home was appropriate and the Children appeared healthy and 

safe. Hogan’s visit was cut short when she asked Mother to take a drug screen 

and Mother declined, indicating she wanted to call her lawyer first. After a 

subsequent meeting between Hogan and Mother at Mother’s lawyer’s office, 

and after Father completed a drug screen that was clean, the assessment was 

classified as unsubstantiated and closed. See Transcript at 30, 33.

[5] On March 17, 2015, an unnamed source contacted DCS twice to report possible 

abuse or neglect of the Children. The caller reported Mother and Father use 

drugs three times a week and buy drugs in the presence of the Children, 

 

2

It appears the source was known to DCS but was not disclosed to Mother or to the trial court.
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including as recently as the day before. The caller also reported that incidents 

of domestic violence between Father and Mother had occurred as recently as 

February or March of 2015.3 In response, Hogan initiated a new assessment.

[6] On the same date, the Crawford County Probation Department received an 

anonymous tip that Mother was using methamphetamine. James Grizzel, the 

county’s chief probation officer, checked the “Pseudo logs” and discovered that 

Mother had recently bought the maximum allowable amount of 

pseudoephedrine and had done so on a monthly basis going back “at least the 

last couple months.” Tr. at 54, 60. Grizzel therefore decided to conduct a 

home visit.

[7] Hogan, Grizzel, and a police officer went to Mother’s home together. Mother 

refused entry to Hogan, but allowed Grizzel and the officer to enter. Mother, 

Father, and three of the Children were home. Grizzel looked around the 

home—both inside and out—and although he confiscated alcohol from the 

refrigerator and saw dusty roach clips pinned to a bulletin board, he saw no 

indications of recent drug use or manufacturing, and neither Mother nor Father 

appeared to be under the influence of alcohol or drugs. Father had just had a 

drug screen less than a week before, so Grizzel did not request another sample 

 

3 Hogan testified there was a specific allegation that F.S. saw Mother hit Father in the head and that 

domestic violence had occurred multiple times. Id. at 25. She further testified there were also allegations that 

F.S. had issues with anger and Mother was driving without a driver’s license. Id. None of this appears on 

the two March 17 preliminary reports of child abuse or neglect included in the record as Exhibits A and B to 

a motion filed by DCS. It appears there may have been a back side or second page to the reports that was not 

copied, either as part of the exhibit originally or as part of the appendix later.
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from him, but he did request Mother submit to a drug screen. Mother provided 

a urine sample on site but Grizzel rejected it based on color and temperature 

and told Mother that she would have to provide a supervised sample at his 

office. That screen came back clean. Grizzel described the house as being “in 

good shape.” Id. at 58. Based upon what Grizzel and the officer told her about 

the condition of Mother, Father, the Children, and the house that day, Hogan

affirmed she was “satisfied that there wasn’t any evidence of drug use in the 

house or on [Mother] and that the children were safe.” Id. at 36. In addition, 

Hogan testified she had not since “found any evidence to verify any of the 

information that was given . . . by this report source.” Id. at 37. 

[8] Nonetheless, on March 17, 2015,4 DCS filed a Motion to Control the Conduct 

of Mother and Father. The motion noted two reports were received by DCS on 

March 17, 2015, “that may constitute an instance of child abuse and/or neglect, 

in that there may be substance abuse and domestic violence in the home,” and 

further noted that in order for Hogan to complete a thorough assessment, “she 

would need an interview with [Mother], [Father], and the children.” 

Appellant’s App. at 18-19. DCS requested a hearing be held and, following the 

hearing, an order be entered requiring Mother and Father “to comply with an 

interview” with DCS. Id. at 19.5 A hearing was originally scheduled for March 

 

4 The motion is actually file-stamped March 16, 2015, but references the March 17 reports to DCS and has a 

certificate of service dated March 17, 2015. Appellant’s App. at 18-19. 

5 At this time there was already a pending motion to control the conduct of Father, referencing the March 2 

report, seeking an order for him to submit to an interview and a drug screen. Id. at 12-13.
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26, and notice was given to both Mother and Father. The hearing was 

ultimately not held until April 7, 2015. 

[9] In the meantime, an additional report was made to DCS on March 31, 2015. 

The caller reported that Father had purchased and used drugs over the 

weekend; Mother was using drugs; both were selling drugs from the house; 

there were further incidents of domestic violence in the presence of the 

Children; and Father had inappropriately disciplined one of the Children. Lana 

Tobin, a DCS family case manager, conducted the assessment on this report. 

She visited the home on April 1, 2015. Mother, Father, and the three youngest 

Children were home; the oldest child was at school. Tobin was able to enter 

the home to look around, and she saw the three Children. She was also able to 

see the oldest child at a later date. The Children were clean and appropriate 

and the home environment appeared safe. She saw no evidence of domestic 

violence and no evidence of drug use. Mother did refuse to take a drug screen 

at that time, however. Tobin testified that because “one of the main things is 

that they are buying and using[,] drug screens would be helpful, . . . but other 

than that, I didn’t have any real concerns.” Tr. at 47. During the hearing, 

Tobin summarized her visit:

Q: [F]rom what you saw, not only did you not see any evidence 

of those [things that were reported], you were satisfied that those 

things just weren’t true?

A: Right, I had no evidence at that time.

* * *

Q: So once again, what we want the Judge to know, not only did 

you not see any evidence, the accusations were false from what 
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you saw?

A: Correct.

Tr. at 51-52.6 

[10] At the hearing on April 7, 2015, Hogan, Tobin, Grizzel, and Mother all 

testified. Mother reaffirmed her refusal to consent to the Children being 

interviewed by DCS. At the conclusion of the hearing, Mother’s counsel stated 

to the court her position supporting the refusal:

First of all, I’ve already mentioned the statute [Ind. Code § 31-33-

8-7] itself. It just says the Court may [grant the motion to 

interview the child] . . . . Here’s the problem with this statute, 

Judge, it’s like no other thing that we have. In that, I think what 

has to be read in the statute is some quantum of evidence for you 

to order the children to be interrogated . . . . Once again, I’ll 

recognize [DCS’s] interest in protecting kids, but if there’s no 

evidence that children need protected, I don’t think you have the 

right to [issue the order].

Id. at 68-70. In response, DCS argued:

In this case, [DCS’s] position is that interviewing the children 

will best allow us to confirm or deny the allegations that are 

contained in these reports. It’s a mischaracterization to say that 

these children are going to be interrogated. They are going to be 

asked about mommy’s drug use and whether daddy beats them. 

They will be asked in an age appropriate manner what is going 

 

6 Mother believes the multiple reports have been made by her sister, who disapproved of Mother’s 

relationship with Father. See Tr. at 64 (Mother reading a text message from her sister the day of Tobin’s visit 

stating “move away from the trailer and I will quit. I will keep doing it until you move to mom’s. . . . I want 

the kids to be safe and they aren’t safe with him, you know that”).
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on in their home. . . . None of this will be, will traumatize the 

children and that is why we’re asking that these children be 

allowed to be briefly interviewed by [DCS] in order to close out 

these allegations and decide whether these are unsubstantiated 

reports.

Id. at 72-73. 

[11] On April 20, 2015,7the trial court issued an order granting DCS’s request to 

interview the two oldest children.8 The order states only that the court grants 

the DCS request “after being duly and sufficiently advised in the premises.” Id.

at 36. At Mother’s request, the trial court allowed her five days to file a Notice 

of Appeal, but if she did not do so, DCS was allowed to proceed with the 

interviews. Mother timely filed her Notice of Appeal and on May 19, 2015, the 

trial court granted her request for a stay pending appeal. 

Discussion and Decision

I. Applicable Law

[12] When DCS receives a report of suspected child abuse or neglect, it “shall 

initiate an appropriately thorough child protection assessment . . . .” Ind. Code 

§ 31-33-8-1(a). “The primary purpose of the assessment is the protection of the 

 

7 The order is actually dated March 20, 2015, but a subsequent nunc pro tunc entry corrected the date. 

Appellant’s App. at 36, 37.

8 The trial court issued an order the same day granting DCS’s earlier request to order Father to submit to a 

drug screen. Id. at 35.
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child.” Ind. Code § 31-33-8-6. Indiana Code section 31-33-8-7 delineates the 

requirements for DCS’s assessment, stating, in its entirety:

(a) The department’s assessment, to the extent that is reasonably 

possible, must include the following:

(1) The nature, extent, and cause of the known or suspected 

child abuse or neglect.

(2) The identity of the person allegedly responsible for the 

child abuse or neglect.

(3) The names and conditions of other children in the home.

(4) An evaluation of the parent, guardian, custodian or person 

responsible for the care of the child.

(5) The home environment and the relationship of the child to 

the parent, guardian, or custodian or other persons 

responsible for the child’s care.

(6) All other data considered pertinent.

(b) The assessment may include the following:

(1) A visit to the child’s home.

(2) An interview with the subject child.

(3) A physical, psychological, or psychiatric examination of 

any child in the home.

(c) If:
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(1) admission to the home, the school, or any other place that 

the child may be; or

(2) permission of the parent, guardian, custodian, or other 

persons responsible for the child for the physical, 

psychological, or psychiatric examination;

under subsection (b) cannot be obtained, the juvenile court, upon 

good cause shown, shall follow the procedures under IC 31-32-

12.

(d) If a custodial parent, a guardian, or a custodian of a child 

refuses to allow the department to interview the child after the 

caseworker has attempted to obtain the consent of the custodial 

parent, guardian, or custodian to interview the child, the 

department may petition a court to order the custodial parent, 

guardian, or custodian to make the child available to be 

interviewed by the caseworker.

(e) If the court finds that:

(1) a custodial parent, a guardian, or a custodian has been 

informed of the hearing on a petition described under 

subsection (d); and

(2) the department has made reasonable and unsuccessful 

efforts to obtain the consent of the custodial parent, guardian, 

or custodian to interview the child;

the court shall specify in the order the efforts the department 

made to obtain the consent of the custodial parent, guardian, or 

custodian and may grant the motion to interview the child, either with 

or without the custodial parent, guardian, or custodian being 

present. 
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(Emphasis added.) Upon completion of an assessment, the initial report shall 

be classified as substantiated or unsubstantiated. Ind. Code § 31-33-8-12.

[13] A petition seeking to order a parent to make a child available for an interview 

by DCS is also governed by Indiana Code chapter 31-32-13, which addresses 

juvenile court procedures generally and the issuance of orders specifically. A 

juvenile court may issue an order “to control the conduct of any person in 

relation to the child” upon the motion of, among others, a caseworker or the 

attorney for DCS. Ind. Code § 31-32-13-1(1). The juvenile court must give 

notice to any person whose conduct will be regulated by such an order to 

appear at a specific date and time for a hearing. Ind. Code § 31-32-13-3; see also

Ind. Code § 31-33-8-7(e)(1). “The court shall issue an order under section 1 of 

this chapter if the court finds that good cause to issue the order is shown upon 

the record.” Ind. Code § 31-32-13-4. An order issued under chapter 31-32-13 

remains in effect for one year, although it may be extended for additional one 

year periods upon an annual review, or may be modified or dissolved at any 

time upon a showing that the original circumstances of the order have changed 

or new circumstances have developed. Ind. Code § 31-32-13-6. 

II. Is Mother’s Appeal Moot?

[14] As a threshold issue, the State argues we should dismiss this appeal as moot. 

At Mother’s request, the trial court stayed its order compelling her to submit the 

Children to a DCS interview pending the outcome of this appeal. In its Brief of 

Appellee, the State alleged it had learned Mother was arrested on July 18, 2015,
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after testing positive for methamphetamine and amphetamine, and she signed a 

consent for DCS to interview the children on that date. The Children were 

adjudicated CHINS on September 17, 2015, after Mother admitted that due to 

her arrest, she was incarcerated and unable to provide care and supervision of 

the Children.9 The State filed an Appendix of Appellee with documents 

allegedly supporting these statements. Based on these events occurring 

subsequent to the filing of this appeal, the State asserts Mother has now 

consented to DCS interviews with the Children, and accordingly, the very 

action she challenges in this appeal has presumably already taken place. The 

State requests this appeal be dismissed because there is no relief we can grant to 

Mother.

[15] An appeal or issue is deemed moot when no effective relief can be rendered to 

the parties before the court. DeSalle v. Gentry, 818 N.E.2d 40, 48-49 (Ind. Ct. 

App. 2004). When the controversy at issue has been disposed of in a manner

that renders it unnecessary to decide the question presented, the case will 

usually be dismissed. Id. at 49.10 However, Indiana courts have long 

recognized that a moot case may nevertheless be decided on its merits under an 

 

9 The State also noted it had advised Mother’s appellate counsel of these developments when it became 

aware of them shortly before filing its brief. Mother’s appellate counsel had not been alerted by Mother’s 

trial counsel or the trial court of these events and learned of them for the first time from the State. See Reply 

Brief of Appellant at 3 n.1. 

10 Our supreme court has noted that although Article III of the United States Constitution “limits the 

jurisdiction of federal courts to actual cases and controversies, the Indiana Constitution does not contain any 

similar restraint.” In re Lawrance, 579 N.E.2d 32, 37 (Ind. 1991). Therefore, while moot cases are usually

dismissed, they are not required to be dismissed.
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exception to the general rule when the case involves questions of “great public 

interest.” C.L.Y. v. State, 816 N.E.2d 894, 900 (Ind. Ct. App. 2004), trans. 

denied. Cases falling within the public interest exception typically contain issues 

likely to recur. C.T.S. v. State, 781 N.E.2d 1193, 1198 (Ind. Ct. App. 2003), 

trans. denied. In addition, an appeal may be heard which might otherwise be 

dismissed as moot where leaving the judgment undisturbed might lead to 

negative collateral consequences. Hamed v. State, 852 N.E.2d 619, 622 (Ind. Ct. 

App. 2006). This is because “it is far better to eliminate the source of a 

potential legal disability than to require the citizen to suffer the possibly 

unjustified consequence of the disability itself for an indefinite period of time.” 

In re Marriage of Stariha, 509 N.E.2d 1117, 1123 (Ind. Ct. App. 1987) (quoting 

Sibron v. New York, 392 U.S. 40, 57 (1968)). 

[16] Mother contends we should address the merits of this appeal. First, she notes 

the document on which the State relies to prove Mother consented to an 

interview with the Children is not a proper part of the record on appeal and 

should not be considered.

11

 Although it is generally true that we may not 

consider matters outside the record on appeal, Schaefer v. Kumar, 804 N.E.2d 

184, 187 n.3 (Ind. Ct. App. 2004), trans. denied, we have also noted that the 

 

11 Indiana Appellate Rule 2(E) defines the “Clerk’s Record” to consist of “the Chronological Case Summary 

(CCS) and all papers, pleadings, documents, orders, judgments, and other materials filed in the trial court . . . 

or listed in the CCS.” Rule 2(L) defines the “Record on Appeal” to consist of the Clerk’s Record “and all 

proceedings before the trial court . . . whether or not transcribed or transmitted to the Court on Appeal.” 

Mother notes that the “Consent of Parent, Guardian, or Custodian to Interview Child(ren)” submitted by the 

State does not contain a cause number linking it to these cases and does not appear to have been filed in the 

trial court, as it bears no file stamp and does not appear in the CCS for these cases. See App. of Appellee at 1. 
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parties should inform the appellate court “of a post-judgment change in 

circumstances which might render a pending appeal moot,” Cunningham v. 

Hiles, 402 N.E.2d 17, 20 (Ind. Ct. App. 1980) (opinion on reh’g).

[17] Nonetheless, even if we accept the State’s additional evidence, we decline the 

State’s invitation to dismiss the case as moot and agree with Mother that this 

case involves a matter of constitutional proportions and is of great public 

interest.

12

 Mother’s claim of constitutional infringement on her right to raise 

her children rests on the premise that Indiana Code section 31-33-8-7 allows the 

trial court to compel any objecting parent to make his or her child available to 

DCS for an interview without any evidence that such an interview is necessary. 

Mother contends the same or similar thing may happen to other parents and is 

likely to evade review. The trial court in this case granted a stay to allow 

Mother to appeal its order, but time is often of the essence in cases dealing with 

possible threats to the welfare of children, and a stay in each case to allow for 

individual review is not a certainty.13 Although a reversal might not afford 

 

12 Mother also claimed the appeal should be considered because of possible negative collateral consequences 

given that the order remained in effect for a year after issuance and could be used to compel further 

interviews with the Children. See Reply Br. of Appellant at 4-5; see also Ind. Code § 31-32-13-6. After the oral 

argument in this case, Mother filed a Notice to the Court informing us that on January 19, 2016, the day 

before oral argument, the State had filed in the trial court a motion to dismiss this cause and the trial court 

had granted the motion on January 21, 2016. Generally, once an appeal is perfected, the trial court loses 

jurisdiction over the case and orders issued by the trial court thereafter are void. In re N.H., 866 N.E.2d 314, 

317 n.3 (Ind. Ct. App. 2007). The trial court’s order, going to the heart of the issue before us, is void and of 

no effect, Crider v. Crider, 15 N.E.3d 1042, 1064 (Ind. Ct. App. 2014), trans. denied, and therefore does not 

impact our decision.

13 A similar case, discussed in greater detail below, has been before this court within the past three years. In 

re A.H., 992 N.E.2d 960 (Ind. Ct. App. 2013), trans. denied. In that case, the trial court entered an order 

compelling the mother to produce her children for an interview with DCS within ten days and denied the 

mother’s request for a stay pending appeal. Judge Riley, writing in dissent and noting the trial court denied a 
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Mother any relief given subsequent events, a decision on the merits will offer 

direction to courts in future cases where DCS seeks an order compelling an 

interview.

III. Is Section 31-33-8-7 Unconstitutional as Applied?

A. Standard of Review

[18] The Fourteenth Amendment guarantees both procedural and substantive due 

process rights. McIntosh v. Melroe Co., a Div. of Clark Equip. Co., 729 N.E.2d 972, 

975 (Ind. 2000). Procedural due process ensures that a party will be given 

notice and an opportunity to be heard at a meaningful time and in a meaningful 

manner. Id. To determine whether a constitutional violation has occurred, we 

ask what process was provided and whether it was constitutionally adequate. 

Zinermon v. Burch, 494 U.S. 113, 126 (1990). Substantive due process “declares 

some actions so outlandish that they cannot be accomplished by any 

procedure.” McIntosh, 729 N.E.2d at 975. It ensures that state action is not 

arbitrary or capricious regardless of the procedures used. Honeycutt v. Ong, 806 

N.E.2d 52, 58 (Ind. Ct. App. 2004). “An arbitrary and capricious decision is 

one which is patently unreasonable. It is made without consideration of the 

facts and in total disregard of the circumstances and lacks any basis which 

might lead a reasonable person to the same conclusion.” City of Indianapolis v. 

 

stay, concluded in the absence of any evidence to the contrary that the children had already been interviewed 

and would have dismissed the mother’s appeal as moot because no effective relief could be granted. Id. at 

968-69. 
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Woods, 703 N.E.2d 1087, 1091 (Ind. Ct. App. 1998), trans. denied. To state a 

claim for a violation of substantive due process, a party must show that the law 

infringes upon a fundamental right or liberty interest deeply rooted in our 

nation’s history or that the law does not bear a substantial relation to 

permissible state objectives. Washington v. Glucksberg, 521 U.S. 702, 720-21 

(1997); N.B. v. Sybinski, 724 N.E.2d 1103, 1112 (Ind. Ct. App. 2000), trans. 

denied. 

[19] As relevant to this case, the United States Supreme Court has held “the sanctity 

of the family” is protected “precisely because the institution of the family is 

deeply rooted in this Nation’s history and tradition.” Moore v. City of E.

Cleveland, 431 U.S. 494, 503 (1977). The Due Process Clause therefore protects 

freedom of personal choice in family life matters. In re T.H., 856 N.E.2d 1247, 

1250 (Ind. Ct. App. 2006); see also E.P. v. Marion Cnty. Office of Family & Children, 

653 N.E.2d 1026, 1031 (Ind. Ct. App. 1995) (“Indeed, the courts of this state 

have long and consistently held that the right to raise one’s children is essential, 

basic, more precious than property rights, and within the protection of the 

Fourteenth Amendment . . . .”). This includes a parent’s fundamental right to 

raise his or her child without undue interference by the state. In re T.H., 856 

N.E.2d at 1250. The right is not unlimited, however, and the State has the 

authority under its parens patriae power to intervene when parents neglect, 

abuse, or abandon their children. Id. 

[20] In general, laws that burden the exercise of a fundamental right receive the 

strictest scrutiny. Ind. Dep’t of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 
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N.E.2d 331, 337 (Ind. 1994); see also G.B. v. Dearborn Cnty. Div. of Family & 

Children, 754 N.E.2d 1027, 1031 (Ind. Ct. App. 2001) (“Because [Appellants] 

have a fundamental right to family integrity, we must strictly construe the 

challenged statute.”), trans. denied. Under the strict scrutiny standard, a statute 

must serve a compelling state interest and be narrowly tailored to serve that 

interest. Crafton v. Gibson, 752 N.E.2d 78, 91 (Ind. Ct. App. 2011).

B. Order on Motion to Interview

[21] Mother does not argue Indiana Code section 31-33-8-7 is unconstitutional on its 

face, as she concedes it may be applied constitutionally. See Br. of Appellant at 

9. Instead, she argues it is unconstitutional as applied to her, because the trial 

court issued an order under the statute compelling her to submit her children for 

an interview with DCS without any evidentiary showing of need. In doing so, 

she acknowledges this issue has already been decided adversely to her position

by another panel of this court. See id. at 11 (citing A.H., 992 N.E.2d at 966-67). 

But she argues this panel should reconsider the holding in A.H., especially in 

light of the Seventh Circuit’s decision in Doe v. Heck, 327 F.3d 492 (7th Cir. 

2003), and hold that an order compelling an interview under Indiana Code 

section 31-33-8-7 can only be issued if there is at least reasonable suspicion of 

child neglect or exigent circumstances. 

[22] For its part, the State concedes Mother has a fundamental due process right to 

raise her children without undue interference by the State. It argues, however, 

that the trial court’s application of Indiana Code section 31-33-8-7 did not 
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violate Mother’s substantive or procedural due process rights because the trial 

court’s order was issued after an evidentiary hearing and was a proper exercise 

of the State’s parens patriae power to intervene to protect the welfare of the 

children. The State urges us to adopt the reasoning of A.H. and hold the trial 

court’s order granting DCS’s petition to interview the Children pursuant to 

Indiana Code section 31-33-8-7 did not violate Mother’s due process rights.

[23] The facts of A.H. are very similar to the facts here: DCS received a report the 

mother was selling heroin and prescription drugs, was using methamphetamine 

and heroin on a daily basis in the presence of her three children, and there were 

syringes all around the house. DCS initiated an assessment, and a family case 

manager made a home visit. She interviewed the mother, who stated she had 

no history of drug use other than prescribed medications. The mother 

submitted to a drug screen which came back negative for all drugs except those 

she was prescribed, and the case manager observed no signs the mother was 

impaired or under the influence of drugs. The case manager walked through 

every room in the house and saw no evidence of drug use or dealing. The one 

child who was present at the time of the visit appeared healthy, but the case 

manager did not speak with him due to his age. The mother indicated the 

father of one of her children had made a previous false report to DCS and she 

believed he may have done so again. Nonetheless, the case manager indicated 

that as part of the assessment, she needed to speak to the two older children, 

who were at school at the time of her visit. The mother declined to grant 

permission for the case manager to speak with the children. At some point after 
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the visit, DCS spoke with the father of one of the mother’s other children, who 

reported the mother had a history of drug abuse, but he had not seen her in 

months and did not know if she was currently using drugs. 

[24] Two weeks after the home visit, DCS filed petitions to interview the two oldest 

children. The mother opposed the petitions on due process grounds. At the 

hearing, the case manager affirmed she had been trained and had experience in 

recognizing signs of daily drug use. When asked if the evidence she observed 

during the home visit failed to substantiate the allegations of the report, she 

replied that it did, “[a]t that point.” 992 N.E.2d at 962 (alteration in original) 

(citation omitted). The trial court acknowledged the mother’s argument about 

her fundamental right to direct the upbringing of her children was 

“compelling[],” but found DCS also had a compelling interest in protecting the 

welfare of children and had no means other than an interview to directly assess 

the conditions of the children as directed by statute. Id. at 962-63. The trial 

court granted the DCS’ request to interview the children and the mother 

appealed. Id. at 963. 

[25] The mother argued on appeal that Indiana’s statutory scheme, which permitted

the trial court to order her to surrender her children for an interview in the 

absence of evidence demonstrating the children were being abused or neglected, 

was contrary to her right to due process. The court recognized that when 

determining whether a given procedure affords a litigant proper process, it must 

balance three factors: 1) the private interests affected by the proceeding; 2) the 

risk of error created by the chosen procedure; and 3) the countervailing 
Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016 Page 20 of 32

governmental interest supporting use of the challenged procedure. Id. at 966.

The court noted the mother’s interest in the care, custody, and control of her 

children and DCS’s interest in protecting the welfare of the children are both 

substantial. Id. However,

[w]hile we recognize the fundamental right of a parent to raise 

her child without undue interference by the state, we cannot say 

that due process requires DCS to conduct an assessment or a 

portion of an assessment in order to obtain information which 

would provide a basis supporting the accuracy or reliability of the 

report, prior to interviewing the child or children. Indeed, an 

interview of the child or children as part of this initial evaluation 

may provide the information needed for DCS to classify a report 

as substantiated or unsubstantiated. . . . [W]e cannot say that the 

risk of error created by the legislature’s chosen procedure in Ind. 

Code § 31-33-8-7 or the actions of DCS or the trial court in this 

case is substantial or favor reversal in this case.

Id. at 967. Accordingly, the court affirmed the trial court’s order granting the 

DCS petition to interview the children. Id. at 968.

[26] Mother argues we should reconsider A.H. because it conflicts with a Seventh 

Circuit Court of Appeals opinion holding that child abuse investigators violated 

the constitutional rights of a child and his parents when they conducted a 

custodial interview of the child without the parents’ consent in the absence of 

any evidence giving rise to a reasonable suspicion that the child was being 

abused. Heck, 327 F.3d at 524. For several reasons, however, we find it 

unnecessary to turn to Heck to resolve the issue before us.
Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016 Page 21 of 32

[27] First, there are significant factual, procedural, and legal distinctions between 

Heck and this case which make Heck’s utility for our purposes questionable at 

best. Heck originates from Wisconsin. The Heck court summarized the facts as 

follows:

Several weeks after learning that administrators of the Greendale 

Baptist Church and Academy used corporal punishment as a 

form of discipline in primary grade school, caseworkers for the 

Bureau of Milwaukee Child Welfare initiated an investigation for 

child abuse. Over the objection of the Academy’s principal, and 

without a warrant or parental notification or consent, the 

caseworkers removed eleven-year-old John Doe Jr. from his 

fourth-grade classroom and interviewed him about corporal 

punishment that he and other students may have received and 

certain family matters. Thereafter, the caseworkers 

unsuccessfully attempted to interview John Jr.’s parents and 

sister, and threatened to remove the Doe children from their 

parents’ custody. The caseworkers also attempted, on a separate 

occasion, to interview other students at the Academy, whom 

John Jr. had identified as having been spanked, but the principal 

at the school flatly refused to grant them access to the children 

without a court order or parental consent. The Bureau 

eventually ended its investigation due to lack of information, and 

the Academy and parents filed suit against three child welfare 

caseworkers, in both their individual and official capacities, 

alleging that the manner in which they handled the investigation 

violated their rights under the Fourth and Fourteenth 

Amendments to the United States Constitution.

Id. at 499. Although there are several significant factual differences between 

Heck and this case, we mention just two: in Heck, the allegation was that a third 

party was abusing the child by using corporal punishment; there was no 

allegation that the parents were abusing or neglecting the child other than the 
Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016 Page 22 of 32

caseworkers’ belief that they might be “complicit” in the abuse because they 

presumably knew of the school’s corporal punishment policy and did not 

prevent their child from being spanked. See id. at 502. Here, the reports were 

that Mother and Father were themselves abusing and/or neglecting their 

Children. Moreover, in Heck, the interview with the child was completed 

without his parents’ knowledge, let alone consent; here, Mother had full 

knowledge of the desired interview and exercised her prerogative to decline to 

give her consent.

[28] Procedurally, the plaintiffs in Heck brought a Section 198314 claim against the 

caseworkers, individually and in their official capacities. The defendants 

asserted qualified immunity, and the district court granted their motion for 

summary judgment. In order to determine whether qualified immunity 

shielded the defendants from liability for the plaintiffs’ constitutional claims, the 

reviewing court first had to determine whether the facts alleged showed the 

conduct by the caseworkers violated a constitutional right at all. Although it 

concluded that some of the actions taken by the defendants were 

unconstitutional, it also concluded that the defendants were entitled to qualified 

immunity and affirmed the district court decision. See id. at 499. Here, we are 

addressing the propriety of a trial court’s action in prospectively granting a 

 

14 42 U.S.C. § 1983.
Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016 Page 23 of 32

motion that would allow the caseworkers to conduct an interview rather than 

retroactively reviewing actions already taken.

[29] Legally, the statute under which the caseworkers in Heck conducted their 

investigation provides that upon receiving a report from which there is reason 

to suspect child abuse or neglect, the appropriate agency shall initiate a diligent 

investigation to determine if the child is in need of protection and services. 

Wis. Stat. § 48.981(3)(c)(1)(a) (1997). Under certain circumstances, “the 

investigation shall also include observation or an interview with the child, or 

both, and, if possible, an interview with the child’s parents, guardian or legal 

custodian.” Wis. Stat. § 48.981(3)(c)(1)(b) (1997).

The agency may contact, observe or interview the child at any 

location without permission from the child’s parent, guardian or 

legal custodian if necessary to determine if the child is in need of 

protection or services, except that the person making the 

investigation may enter a child’s dwelling only with permission 

from the child’s parent, guardian or legal custodian or after 

obtaining a court order to do so.

Id. Mother asserts the Wisconsin statute and the Indiana statute are “identical 

in all meaningful, relevant respects” and “cannot be meaningfully 

distinguished,” Br. of Appellant at 14, although she does acknowledge a 

“significant” difference, id. at 17: Indiana’s statute does not allow DCS to seize 

a child and conduct an interview without either parental consent or a court 

order, whereas Wisconsin’s statute requires neither. This, the State argues, “is 

a very big difference.” Brief of Appellee at 11 n.7. Unlike the statute addressed 
Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016 Page 24 of 32

in Heck, the Indiana statute requires notice to the parent and a hearing before a 

court order may be issued compelling a parent to make his or her children 

available for an interview. See Ind. Code §§ 31-32-13-2 and -3. We agree with 

the State that the Wisconsin statute is not similar to Indiana’s statute in any 

relevant way, and therefore a decision made under the Wisconsin statute is 

inapposite to a decision applying the Indiana statute.

[30] Second, in addition to the dissimilarities between this case and Heck, Seventh 

Circuit Court of Appeals cases are not binding on Indiana state courts. Ind.

Dep’t of Pub. Welfare v. Payne, 622 N.E.2d 461, 468 (Ind. 1993) (noting that 

“lower federal court decisions may be persuasive but have non-binding 

authority on state courts”). Mother acknowledges this, but nonetheless urges us 

to consider Heck persuasive authority serving as a basis for “reconsidering” 

A.H., which “clearly authorizes a trial court to issue an order under Ind. Code § 

31-33-8-7 absent a showing of any evidence by the DCS.” Br. of Appellant at 

23. A.H. is a Court of Appeals decision, however, and we do not recognize 

horizontal stare decisis in Indiana. See In re C.F., 911 N.E.2d 657, 658 (Ind. Ct. 

App. 2009) (stating “each panel of this Court has coequal authority on an 

issue”). Therefore, although we are respectful of the panel’s decision in A.H.

and have given consideration to that opinion and its reasoning as we assess the 
Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016 Page 25 of 32

facts and circumstances presented by this case, we are not bound by it. See id. 

In short, we write upon a clean slate.15

[31] As noted above, parents have a constitutional right to raise their children 

without undue interference and the State has a valid, compelling interest in 

protecting those same children, though its interest does not rise to the level of a 

fundamental right. See In re T.H., 856 N.E.2d at 1250. Essentially, we are 

asked to determine what standard of evidence is enough to tip the balance 

toward the State’s interest and justify compelling the parent to act in a manner

inconsistent with his or her right to control the family. Mother seeks to impose 

a Fourth Amendment-like standard on a court order issued pursuant to Indiana 

Code section 31-33-8-7; that is, she asserts such a court order should only be 

issued if supported by, if not probable cause, at least reasonable suspicion. 

Mother does not claim that the Children cannot be interviewed under any 

circumstances; rather, she asserts that an order compelling interviews over her 

objection was inappropriate on this record. The State asserts that imposing an 

evidentiary threshold of reasonable suspicion or probable cause before an order 

 

15 We also note that the State agreed at oral argument that A.H. did not specifically address this particular 

point, that is, what the standard of evidence for an order under section 31-33-8-7 is. See

https://mycourts.in.gov/arguments/default.aspx?id=1898&view=detail (beginning at 24:40).
Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016 Page 26 of 32

compelling an interview can be granted is contrary to good public policy and 

would interfere with the State’s interest in protecting the welfare of children.16

[32] Indiana Code section 31-33-8-1 provides that DCS shall initiate an 

“appropriately thorough” assessment of every report of child abuse or neglect it 

receives. Ind. Code § 31-33-8-1(a). Such an assessment must include certain 

things, Ind. Code § 31-33-8-7(a), and may include an interview with the child, 

Ind. Code § 31-33-8-7(b)(2).

17

 If DCS attempts to obtain the consent of the 

parent to conduct an interview with the child and the parent refuses, DCS may

petition the court to order the parent to make the child available. Ind. Code § 

31-33-8-7(d). The court may issue such an order, after a hearing, if the court 

“finds that good cause to issue the order is shown upon the record.” Ind. Code 

§ 31-32-13-4; see also Ind. Code § 31-32-13-1 (providing the court may issue an 

order to control the conduct of any person in relation to the child); Ind. Code § 

31-33-8-7(e) (providing the court may grant a motion to interview the child). 

Because of the distinction between must and may, the legislature cannot have 

intended an interview with a child to be a matter of course in every assessment. 

See G.E. v. Ind. Dep’t of Child Servs., 29 N.E.3d 769, 771 (Ind. Ct. App. 2015) 

(noting the term “may” “ordinarily implies a permissive condition”); State ex rel. 

S. Hills Mental Health Ctr., Inc. v. Dubois Cnty., 446 N.E.2d 996, 1001 (Ind. Ct. 

 

16 The State asserted at oral argument that the legislature did not include an evidentiary standard within the 

statute for a reason. See https://mycourts.in.gov/arguments/default.aspx?id=1898&view=detail (beginning 

at 25:30). 

17 See supra Section I.
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App. 1983) (“The words ‘must’ and ‘shall’ are mandatory terms.”). Rather, 

DCS is not required to conduct an interview with a child as part of its 

assessment, and the trial court is not required to issue an order allowing an 

interview over a parent’s objection. However, the trial court may issue such an 

order if DCS shows good cause on the record supporting its request for an 

interview.

[33] The motion seeking to compel Mother to submit her children for DCS 

interviews states:

Comes now [DCS], and pursuant to Indiana Code § 31-33-8-7 

and Indiana Code Chapters 31-32-13, moves the Court for a 

hearing on the ability to control the conduct of [Mother] and 

[Father] . . ., who refused an interview with the parents and the 

children requested by [DCS] regarding an assessment of 

allegations of drug abuse and domestic violence. [Mother] and 

[Father] need to comply with the request of [DCS] with an 

interview and allow the children to be interviewed allowing the 

allegations of substance abuse and domestic violence to be 

assessed. In support thereof, counsel for [DCS] states as follows:

1. That on March 17, 2015, two additional reports[18] were 

received by [DCS] that may constitute an instance of child abuse 

and/or neglect, in that there may be substance abuse and 

domestic violence in the home . . . .

2. That responsibility for the report was assigned to Family Case 

Manager Brenda Hogan after the reports were received in order 

to assess the children for potential abuse or neglect.

3. That Brenda Hogan states that in order to complete a 

 

18 The March 2, 2015 report was addressed in the earlier Motion to Control the Conduct of [Father], seeking 

an interview and drug screen from Father. Appellant’s App. at 12.
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thorough assessment, she would need an interview with 

[Mother], [Father], and the children.

* * *

5. That an order to control the conduct of [Mother] and [Father] 

is necessary to effectuate the goal and mission of [DCS], in order 

to protect the children from abuse and neglect.

Appellant’s App. at 18-19. 

[34] Good cause is an admittedly imprecise standard. See Newton v. Yates, 170 Ind. 

App. 486, 496, 353 N.E.2d 485, 492 (1976) (stating, in the discovery context, 

that “[w]hile an exact definition of good cause is somewhat elusive, it is clear 

that a mere allegation of need and a summary statement alleging that the 

information cannot be obtained from another source will not be sufficient to 

surmount a ‘good cause’ hurdle”). Nonetheless, it is the statutory standard 

upon which the trial court must base its decision. We are not prepared to say 

that a higher evidentiary threshold is constitutionally required to support an 

order compelling an interview, as we do not have to under the facts of this case. 

As in Newton, DCS cannot merely allege it “needs” to interview a child to 

“complete its assessment” and thereby show good cause. Something more is 

required, but nothing more was shown in this case.

[35] DCS is statutorily required to assess all reports of child abuse and neglect. 

Before an order can be entered overriding a parent’s wishes and subjecting a 

child to an interview, however, DCS must show the trial court some evidence 

beyond a report from an undisclosed source that neglect or abuse is occurring. 

In other words, a report triggers an assessment, but because the assessment is 
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not required to include an interview with the child, the report alone does not 

allow DCS to conduct such an interview. Rather, if in gathering information 

about the items required to be included in an assessment, DCS finds some 

evidence supporting the allegations of the report and determines—not as a 

matter of course, but as a result of the circumstances of the specific case being 

investigated—that an interview is necessary to complete “an appropriately 

thorough” assessment, DCS may ask the trial court to order an interview if the 

parent does not consent. 

[36] There was no such evidence in this case. At the hearing on DCS’s motion, 

evidence was presented that four reports of abuse or neglect were made to DCS 

against Mother and Father within a month. An additional report implicating 

abuse or neglect was made to the probation department during this time. Three 

home visits were conducted by three different people as a result of those reports. 

Hogan made a visit to the home after the first allegation, during which she saw 

no evidence to support the report and classified the report as unsubstantiated. 

Grizzel made a visit to the home after the probation department received a 

report that Mother was using drugs. He saw no evidence of drug use or 

manufacturing in the house, no indication Mother was under the influence of 

drugs or alcohol, and Mother passed a drug screen. Hogan accompanied 

Grizzel to the home to assess the second and third reports made to DCS, but 

was unable to gain access to the home herself. Based upon what Grizzel told 

her, however, she was satisfied the children were safe. Nonetheless, DCS filed 

its motion to control Mother’s conduct and submit her children to an interview 
Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016 Page 30 of 32

after this visit. Tobin visited the home after the fourth report was made. She

also saw no evidence of drug use, found the home environment to be safe and 

appropriate, and saw no issues of concern with respect to the children. She 

stated that from what she saw, the accusations made in the fourth report were 

false. Multiple reports and multiple visits led to the same result: no evidence 

supporting an allegation of abuse or neglect. 

[37] The State asserted at oral argument that Grizzel’s testimony was sufficient to 

support further investigation. Grizzel learned that Mother had been regularly 

purchasing the maximum legal amount of pseudoephedrine. Nonetheless, 

Mother’s purchases were within legal limits. In Grizzel’s “professional 

opinion,” the alcohol he found at Mother’s home was not “old” as she claimed, 

but Mother did not exhibit any signs of intoxication. Tr. at 57. Grizzel did not 

accept the urine sample Mother provided at the home because of its color and 

temperature, but she later provided a supervised sample that tested clean. The 

State posits that Mother was being dishonest with Grizzel and it would be 

reasonable for the trial court to assume from his testimony, when considering 

the totality of the circumstances, that there was probably more going on than 

DCS was able to see in its home visits.19 Whether or not it would be reasonable 

for the trial court to assume anything from Mother’s interaction with her 

probation officer, the “totality of the circumstances” also include repeated 

 

19 The fact that Mother was apparently arrested for a drug-related offense in July of 2015 does not 

retroactively show that she was “probably” using drugs and neglecting her children in March of 2015. 
Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016 Page 31 of 32

reports that may have been precipitated by ulterior motives, three home visits in 

four weeks’ time that uncovered no evidence of drug use or violence in the 

home, and testimony from one DCS case manager that not only was there no 

evidence that would support the allegations of the report, but that the 

allegations were untrue. 

[38] The State also asserts that DCS was unable to show any such evidence because it 

was unable to interview the children. In this regard, it is important to consider 

the nature of the allegations. Here, the primary allegations concerned drug use, 

external signs of which would likely be apparent to the trained—and perhaps 

untrained—eye. In addition, there were allegations of physical violence 

between Mother and Father. Yet no official who interacted with the family saw 

evidence of either. There was no drug paraphernalia in or around the house, 

there were no visible marks from drug use or bruises from physical altercations, 

neither Mother nor Father ever appeared intoxicated or under the influence of 

drugs, and both consistently passed drug screens. No probative evidence 

supporting the allegations was shown on the record, and accordingly, there was 

no good cause to compel interviews with the Children. 

[39] As in A.H., we agree the procedure selected by the legislature for assessing

reports of child abuse and compelling interviews with children does not 

necessarily violate due process. See 992 N.E.2d at 967. However, when the 

procedure is not observed, such as here where DCS did not demonstrate by any

evidence that an interview was necessary for it to carry out its obligation to 

investigate reports of child abuse or neglect, the law impermissibly infringes 
Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016 Page 32 of 32

upon the parent’s fundamental right to raise her children without undue 

interference by the State. Accordingly, we hold the trial court erred in issuing 

an order to control Mother’s conduct by compelling her to submit her children 

to an interview by DCS.20

Conclusion

[40] The statutes on which DCS based its request to control Mother’s conduct by 

compelling her to submit the Children to interviews by DCS require DCS to 

show some evidence suggesting abuse or neglect before the trial court may issue 

such an order. No such evidence was presented to the trial court in this case, 

and the order issued pursuant to Indiana Code section 31-33-8-7 is reversed.

[41] Reversed.

Barnes, J., and Altice, J., concur.

 

20 This decision does not vitiate any consent Mother gave for the Children to be interviewed following events 

subsequent to those specifically at issue herein.