A Quick and Concise Outline of the CHINS Process in Indiana

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Posted in On December 27, 2014

A Quick Look at CHINS Cases:

One of the scariest and most overwhelming things a parent can experience is when the State of Indiana decides to file a CHINS (Child In Need of Services) petition against them. The reason it can be so overwhelming is once the Court interjects themselves into the nuclear family through a CHINS petition, they effectively take complete control over all parenting decisions and all children in the family. When it happens, parents can essentially lose all control to make any and all decisions on how the rearing of their children should work. The Court can take children away, place them in foster care, require supervised visitation, mandate parents partake in a handful of hundreds of parenting programs available, etc. And, if CHINS is established, the only way to get the State out of your life is to do EVERYTHING they ask of you – to a “T.” If you don’t, the process drags out, can last months, if not years (in the worst case scenarios), and the State maintains complete control over your family unit.

Because so much is at stake, it’s essential that any parent, guardian, or custodian have a complete and total understanding of how the CHINS process works. Though this blog contains tons of useful information, almost always, without fail, it makes sense to have an attorney represent you through any CHINS matter and explain the concepts contained herein in more detail. Nevertheless, we thought it would be help to give a quick and concise overview of how CHINS is established, what happens if it is, and what the Courts can, may, and will do as part of the proceedings.

  1. What is CHINS?: Governed by IC 31-34-1
    1. Definition:
      1. CHINS = “Child in Need of Services” and the child is “neglected or abused” and is not getting the care they should
      2. Child: Has to be a person under 18 years of age or 18, 19, or 20 with a prior CHINS case
      3. Parent: biological or adoptive and includes both parents regardless of marital status
    2. Standard of Proof: a preponderance of the evidence (a.k.a. more probable than not)
    3. Jurisdiction: juvenile courts have exclusive and original jurisdiction of CHINS cases
      1. Can be filed: (1) in county where child lives, (2) where the act occurred, and/or (3) where the condition exists
    4. 10 CHINS Categories: For a look at case law addressing each of the categories below, click here,
      1. Child Neglect
      2. Child Physical Abuse
      3. Child Sexual Abuse as Victim
      4. Parent’s Allowance of Child’s Obscene Performance
      5. Parent Allowance of Child’s Sexual Offenses
      6. Child Endangerment or Self or Others
      7. Parent’s Failure to Participate in School’s Disciplinary Proceedings
      8. Missing Child
      9. Child Has Fetal Alcohol Syndrome or Drugs in System
      10. Child Has Injury, Abnormal Developmental Delay, or Condition Caused by Mother’s Alcohol or Drug Abuse
  2. How it Begins:
    1. Valid Report Received:
      1. “Reason to Believe” Report comes in with “evidence that, if presented to individuals of similar background and training, would cause the individuals to believe that a child was abused or neglected.”
    2. Written Report Generated:
      1. DCS starts a thorough child protection assessment of every report made and a written report is generated (a.k.a. a 310 report) no later than 24 hours from the report
    3. Family Case Manager Assigned:
      1. DCS assigns a Family Case Manager and conducts visits and interviews of the child, siblings, parents, and others
      2. A forensic interview may also be conducted
    4. A determination is made as to if the report was (1) substantiated, IC 31-9-2-123 or (2) unsubstantiated, IC 31-9-132
    5. If substantiated
      1. The report is indexed in the Child Protection Index
      2. The Case Manager will offer services to the parents and develop a Safety Plan
    6. The Case Manager has the option to open a CHINS or not. If a CHINS is requested, a DCS attorney will file a CHINS petition.
    7. A Case Manager can also offer an informal adjustment whereby programs are offered to remedy the CHINS concerns. If the court approves it, the kids stay with the parents
    8. There is a determination as to if both parents are offenders or if one of the parties is a non-offender.
  1. The CHINS petition: for a sample, click here,
    1. Initiator: DCS or Prosecuting attorney files it
    2. Contents: Must include facts about the neglect or abuse
    3. Standard: Court must find probable cause to believe CHINS exists for it to be filed
    4. Notice: notice must be sent to all relevant parties including parents, guardians, and custodians of the allegations and the date of the initial hearing.
      1. Written notice must be given to the parents, guardian, or custodian with an “advisement of rights.”
        1. Advisement of Rights:
          1. Right to a Detention Hearing within 48 hours if child is removed
          2. Right to an Attorney (one can be appointed if you cannot afford one), Present Witnesses, and Cross Examine Witnesses
          3. Right against self-incrimination and/or that any statements can be used against them
          4. Right to Request a Case Review by the county Child Protection Team
  2. Initial Hearing Held: (IC 31-32-7)
    1. The parent, guardian, or custodian will admit or deny the allegations.
      1. Admission: there will be a dispositional hearing set in 30 days
      2. Denial: there will be a fact-finding hearing/trial (always a bench trial, never a jury trial) set by the court
    2. There is an Appointment of Guardian ad Litem (GAL) or Court Appointed Special Advocate (CASA)
    3. The court will inform the parties of the possible dispositional alternatives, parental obligations and/or costs if CHINS is found
  3. Detention Hearing Held: (IC 31-34-10-2(i))
    1. When: Must be held within 48 hours of removal of children
    2. Why: This is only held if child has been taken from the parents. If so, it’s held at the same time as the initial hearing.
    3. Purpose: Temporary placement is determined
    4. Considerations: Detention can continue if one of the following exists by a finding of probable cause:
      1. Detention is necessary for the child’s protection,
      2. The child is unlikely to reappear at court,
      3. The child has a reasonable basis for asking not to be released,
      4. The parent, guardian, or custodian cannot be located or is unable to take custody, and/or
      5. Services cannot provide adequate safety
  4. Fact-Finding Hearing: must be held within 60 days, but can be 120 days with party agreement
    1. Burden: the burden of proof is on the DCS attorney, unless a rebuttable presumption applies:
      1. Rebuttable Presumption: (a.k.a. burden shifting back to parent) if one of the following occurs, the burden shifts back to the parent:
        1. The child has been injured;
        2. At the time of being injured, the parent, custodian, or guardian:
          1. Had custody, control, or care of the child or
          2. Had a legal responsibility to do so
        3. The injury would not ordinarily have occurred except for an omission by the parent or a particular act
        4. There is “reasonable probability” the injury was not accidental
    2. Standard of Proof: preponderance of the evidence (a.k.a. more probable than not)
    3. Consideration: while it’s important that the DCS attorney prove what was alleged, but consideration should also be given to the current state of affairs as well
    4. Prior 404 Character Evidence Admissible: a court may consider a parties prior acts causing injury or neglect to a child to prove intent, knowledge, absence of mistake, identification, common scheme, or plan in the underlying CHINS
    5. Privileges Don’t Exist: IC 31-34-12-6 states that spousal immunity and physician-patient privilege don’t apply in CHINS hearings
      1. Child Hearsay Admissible: in limited circumstances a child’s statements (meaning a child under 14 or a child under 18 with a disability) may be admissible in limited circumstances.
  5. CHINS found true, now what?
    1. Dispositional Hearing: if a CHINS is found, the court must hold a dispositional hearing within 30 days. If that isn’t done, the court must dismiss the case!
      1. Predispositional Report: prior to the hearing, DCS must generate a predispositional report including their recommendations for treatments, services, etc. However, all recommendations must suggest the “least restrictive” means necessary.
      2. Purpose: for court to determine child placement, parental participation, services required by parent and for the child, visitation, protective orders, and child support payments to reimburse DCS.
      3. Appeal: this is the first time an appeal is available, as the matter is not considered final until the judge issues a ruling and issues orders therefrom.
        1. Appeals Process is governed by IC 31-32-15-1
      4. Order: the court can order the following things by statute, IC 31-34-20-1, but must do so with evidentiary support and conclusions in writing:
        1. Supervision of child by DCS
        2. Outpatient treatment of child
        3. Removal of child from parents and placing child in foster care, etc., with a plan for visitation
        4. Award wardship to DCS (see IC 31-9-2-134.5)
        5. Full or partial child emancipation
        6. Order parents, custodians, or guardians to complete programs/services recommended by DCS
        7. Issue protective/no contact orders
    2. Dispositional Modification hearings: these can also be requested by the parties or can be agreed to by the parties.
    3. Review Hearings (a.k.a. placement/jurisdiction hearing): will be set as often as the court deems necessary, but at a minimum every six months
      1. Notice: IC 31-34-21-4(a) states at least 7 days prior to every review hearing, DCS must provide a written progress report with an update on the status of the case
      2. Rights of the Parties: IC 31-34-21-4(d) states that interested parties may: be heard at the hearing, provide a written statement, the right to present oral testimony, and the right to cross examine witnesses
      3. Courts Role: the court uses these hearings to get an update of the case and to determine how well the parties are complying with the recommendations, how rehabilitation is going, and if CHINS needs to continue. If the court determines that CHINS is no longer necessary, a permanency hearing can be requested and/or the parents discharged.
    4. Permanency Hearing: will be set within 30 days of a court ruling that reunification isn’t necessary and/or every 12 months from when the child was removed or dispositional hearing.
      1. Purpose: a permanency hearing is to finalize a long-term plan for permanent placement of the child.
      2. Notice: 7 days’ notice is required to be given to all relevant parties.
      3. DCS Report: the family case manager must prepare a report according to IC 31-34-22 prior to the hearing.
        1. Hearsay allowed: so long as the information is probative, it’s allowed
      4. Rights of the Parties: IC 31-34-21-4(d) states that interested parties may: be heard at the hearing, provide a written statement, the right to present oral testimony, and the right to cross examine witnesses
      5. So long as the parents comply, the CHINS can end
  6. What if Parents Fail to Comply?
    1. A termination hearing can be held — in other words, the State can try to terminate parental rights of a parent…effectively ending the legal relationship between parent and child.

With so much on the line, it’s essential that you hire an experienced Indianapolis CHINS lawyer to help fight for your parental rights.  The attorneys at Banks & Brower, LLC are experienced Indianapolis CHINS attorneys that can help you navigate the requirements to gain back access to your children without the courts involvement. We are available 24/7/365 for your questions.  Give us a call at 317.870.0019 or email us at info@banksbrower.com.