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CHINS

"Children in Need of Services" (CHINS) & Parental Rights

Counsel from a Carmel Child Custody Attorney

The U.S. Supreme Court has repeatedly acknowledged the fundamental rights and liberties of parents to rear their children in the way they see fit, calling such a right as being among "the basic civil rights of man" and "of basic importance of our society." 1 Whether it is be a child's education, religion, medical treatment, or discipline, a child's parents or guardians should have the right to decide what is best for their child under the 14th Amendment of the United States Constitution.

Find Out More About How We Help with Child Custody Cases

Occasionally, in making such decisions for their child, a parent or guardian may become the target of abuse or neglect allegations, risking the loss of custody of their child. The Carmel child custody attorneys at Roberts Means Roncevic Kapela have experience in assisting parents in the complex area of "Child in Need of Services" litigation, as well as in defending those who have had their parental rights terminated.

"CHINS" Defined

In Indiana, a child under the age of 18 years may be deemed a "Child in Need of Services" (CHINS). Under Indiana's "CHINS" statute 2, a child who has allegedly been abused or neglected is legally referred to as a "Child in Need of Services." This statute contains several categories which define abuse or neglect, making parents or guardians subject to CHINS litigation.

These categories include the following matters:

  • An allegation that a parent or parents are unable, refuse, or neglect their duty or risk neglecting their duty to provide the child with necessary food, clothing, shelter, medical care, education, or supervision. 3
  • An allegation that the child's physical or mental health has been seriously endangered or injured due to the action or omission of a parent or risks being seriously endangered or injured. 4
  • An allegation that the parent or parents have manufactured illegal drugs or controlled substances on the property where the child resides. 5
  • An allegation that the child is a victim of or risks being a victim of a sex offense such as rape, criminal deviate conduct, molestation, exploitation, seduction, sexual misconduct with a minor, public indecency, prostitution, or voyeurism. 6
  • An allegation that the child's parent or guardian has allowed the child to commit an "obscene performance" or "sex offense," such as public indecency, prostitution or voyeurism, or that the child is at risk of committing such an offense. 7
  • An allegation that the child substantially endangers his or her own health or the health of another individual, and that the child is not receiving care, treatment, or rehabilitation. 8
  • An allegation that the parent or guardian has failed to participate in the child's school disciplinary proceedings in connection with the child's improper behavior. 9
  • An allegation that the child is a "missing child." 10
  • An allegation that the child suffers from a disability and has been or risks being deprived of life sustaining nutrition or medical/surgical intervention. 11
  • An allegation that an infant child has been born with fetal alcohol syndrome or with the presence of controlled substances or legend drugs. 12
  • An allegation that an unborn child has an injury, physical or psychological condition, or is at substantial risk of a life threatening condition due, to a pregnant mother s alleged use of alcohol, controlled substances, or legend drugs during pregnancy. 13

What are the parental rights?

Whenever a CHINS petition is filed or a child is taken into custody, the Department of Child Services must give the child's parents or custodians an advisement of their rights. 14 Whenever proceedings to terminate the parent-child relationship are filed, the parents have several rights that they shall be informed by the court.

In either of these proceedings, the parent's rights include:

  • The right to a detention hearing within 48 hours of removal of the child from the home.
  • The right to legal representation (in proceedings to terminate parent-child relationship).
  • The right to present witnesses.
  • The right to cross-examine the state's witnesses.
  • The right to not make incriminating statements.
  • The right to be told that any incriminating statements that are made may be used against them in a court of law.
  • The right to written notice of a CHINS hearing, not less than five (5) days before the date of the scheduled hearing.
  • The right to request a case review by the county child protection team.
  • The right to be advised that a Petition to Terminate Parental Rights must be filed whenever a child is removed from the parent or custodian's home and has been under Department of Child Services supervision for 15 of the most recent 22 months.
  • The right to be informed, seven (7) days in advance, that a statement or videotape of the child is intended to be introduced into evidence in CHINS proceedings.
  • The right to be informed, twenty (20) days in advance, that it is intended that a child will provide testimony outside of a courtroom, in termination of parental rights hearings.

Unfortunately, in the context of domestic relations litigation and other child custody litigation, some parents or guardians can become the target of falsified allegations of abuse or neglect. Several provisions of Indiana law aim to protect those who are wrongfully accused and, in some instances, permit the victims of falsified reports to hold their accusers liable via civil and criminal suit. 15

Allegations of Abuse/Neglect & the CPS Investigation

Any person who has reason to believe that a child is a victim of child abuse or neglect must report their belief to either law enforcement or the county child protective services office. 16 In fact, the failure of persons to follow this mandate can result in criminal misdemeanor charges. 17Persons who report child abuse/neglect are immune from civil or criminal liability unless they acted maliciously or in bad faith in their reporting. 18 However, there is a presumption that the person reporting abuse or neglect did so in good faith. 19

In situations where an emergency does not exist, child protective services will commence an investigation into alleged abuse or neglect. If the allegations involve child abuse, the investigation must commence within a 24 hour period of receiving the report. If the allegations are that the child is neglected, the investigation must commence within a 5 day period of receiving the report. 20 Allegations of imminent danger to the child must have an investigation commenced within one hour, regardless of the time of day. 21

In conducting an investigation of alleged abuse or neglect, the child protective service investigator may visit the child's home, interview the child, and make requests that physical, psychological, or psychiatric examinations be made of the child. 22 After completing the investigation, CPS must issue a report finding that the allegations are substantiated or unsubstantiated. 23 Unsubstantiated reports may not be entered into the child abuse registry and must be expunged. 24

In certain cases, law enforcement officers, probation officers, or caseworkers are authorized to temporarily remove a child they believe to be in need of services from the home and take the child into custody without a judicial hearing-and without a court order-if that person believes there is not a reasonable opportunity to obtain a court order and that family services are otherwise unavailable. 25 If a child is seized without a judicial hearing or without a court order, the Department of Child Services must notify the parent or custodian within two hours. 26 The parents or guardians must be notified that the child is being held and the reasons for said detention. Thereafter, the child's seizure and the issue of the child's continued detention must be held for hearing before a judge within forty-eight (48) hours, excluding weekends and holidays. 27

After completing an investigation in non-emergency situations, if CPS finds that the allegations of abuse or neglect are in the investigator's opinion substantiated, one of three scenarios will typically take place between the Department of Child Services and the parents or guardians of the child: (1) entry by both parties into a Service Referral Agreement; (2) a request by both parties that the juvenile court permit a Program of Informal Adjustment; and (3) the Department of Child Services filing a petition requesting the juvenile court declare the child a CHINS.

Service Referral Agreements

A service referral agreement is a written agreement between the child's parents or guardians and Department of Child Services that requires the parent to voluntarily participate in recommended family or rehabilitative services for up to six months. 28 A "SRA" may be entered into without the intervention of the juvenile courts, but the Department has no legal authority to compel the parent or guardian's attendance in the family or rehabilitative services. 29 Generally, upon completion of the agreed upon term of family or rehabilitative services, the CPS investigator will close out the matter and the report substantiating abuse or neglect will not be entered into the child abuse registry. Failure of the parent or guardian to substantially comply with the SRA may result in the Department terminating the agreement and requesting that the report substantiating abuse or neglect be entered into Indiana's child abuse registry. 30

Program of Informal Adjustment

If the Department of Child Services does not offer entry into a SRA and the matter is submitted to the juvenile court, the Department and the parents or guardian may agree to enter into a Program of "informal adjustment." An "informal adjustment" is utilized as an alternative to filing a petition alleging that the child is a Child in Need of Services. 31 Typically, the family will retain custody of the child, but are required to participate in certain family services. A case worker with Child Protective Services will then file status reports to the juvenile court that outline the family's compliance with the agreement. Unlike a SRA, failure to participate in an Informal Adjustment can be considered contempt of the court's orders.

Petition to Declare Child a CHINS

If the Department of Child Services believes that the child is in need of services, they may file a petition seeking to declare the child a CHINS. In making such a filing, the Department is representing the interests of the State of Indiana for all subsequent proceedings. 32 If the petition does not request immediate removal, the court will schedule an initial hearing which will then be succeeded by one of several different types of hearings.

Litigation Involving "CHINS" & Termination of Parental Rights

Detention Hearings

In situations where a child has been seized without a court order or hearing, a detention hearing must take place within 48 hours, excluding weekends and holidays. 33 The judge must make written findings on whether the removal was necessary to protect the child, whether the family was offered services prior to the removal, and the reasons why services failed to prevent removal of the child. 34 The court must release the child to the parents unless: (1) continued detention is necessary to protect the child; (2) the parent cannot be located; or (3) the parent is unable or unwilling to take custody of the child. 35

Initial Hearing on CHINS Petition

At the initial hearing the court will inform the parent or guardian of the alleged abuse or neglect and alert them that if the court finds the child to be a CHINS, then the parent may be required to participate in the child's rehabilitation or treatment program, and may also be financially responsible for these programs. 36

The parent is then permitted to admit or deny the allegations contained in the CHINS petition. If the parent rebuffs the allegations, the court will schedule a fact-finding hearing. If the parent admits the allegations, the court will schedule a dispositional hearing.

Fact-Finding Hearing on CHINS Petition

For all contested matters, the court will schedule a fact-finding hearing within 60 days of the date the CHINS petition was filed. 37 At the fact-finding hearing testimony and evidence will be presented to the judge by the child protective service investigator and other relevant caseworkers, as well as the parents and other family members. At the close of evidence, the court will make a determination if the child is indeed in need of services. If the court determines the child is not a CHINS, the matter is discharged and closed. 38 If instead the court determines the child is a CHINS, a dispositional hearing will be scheduled.

There are several differences in a CHINS fact-finding hearing and a criminal hearing, which may stack the odds against the parent or guardian and increase the need for the parent to be represented by counsel. First, the state must prove its allegations only by a preponderance of the evidence (more likely than not) rather than beyond reasonable doubt found in criminal courts. 39 In addition, the court is to take a statutory presumption that the child is in need of services if the child was injured in an extent that would not normally occur if it weren’t for the action or omission of the parent. 40 Finally, certain privileges such as the right to refuse to testify against a spouse, or the patient-physician privilege are inapplicable in CHINS proceedings. 41

Dispositional Hearing

Before the dispositional hearing, the CPS caseworker will prepare a pre-dispositional report, including the child's needs for care, treatment, and rehabilitation. 42 At the dispositional hearing, the court will look at several statutory factors, including alternatives for care, treatment, rehabilitation, or placement of the child; the necessity, nature and extent of parental participation in the treatment program designed for the child; and the financial ability of the parent to help pay for services of the child. 43 In factoring the above, the court will enter a dispositional decree, which may remove the child from the home; order the parent or other person to refrain from contact with the child; order the parent to complete certain services or programs; or order the parent to reimburse the Department of Child Services for child care expenses. 44

In the event a parent is ordered to complete services or programs, it could include individual or family counseling, undergoing psychological or parenting assessments, drug or alcohol rehabilitation programs, parenting classes, anger management classes, or simply to visit with the child regularly or maintaining stable employment.

In the event a child is ordered to be removed from the home, the court will-in weighing the child's best interest-strive to place the child in closest proximity to the parents' home, and in the most family-like setting available. 45 Indiana Code dictates that blood or adoptive relatives must be considered first for placement. 46

Case Review Hearing

Following a dispositional hearing, the court must review each CHINS case via a case review hearing at least semi-annually. 47 Prior to each case review hearing, the caseworker assigned must prepare a progress report to the Court. At the case review hearing, the Court will determine if the child's needs are being met by the case plan and services offered, and if placement continues to be in the child's best interests. In addition, the Court will determine if the Department of Child Services has made reasonable efforts to provide family services, and also issue a projected date for the child's return to the home. 48

Proceedings to Terminate Parental Rights

If a parent fails to participate or follow in Court ordered family services, or fails to follow through with service provider recommendations, the Department of Child Services may seek to terminate the parents' rights to custody, control, or visitation with the child. The Department of Child Services must make a higher showing of proof to terminate parental rights than to have the child be deemed a CHINS.

In these proceedings, the DCS must show by clear and convincing evidence 49 that:

  • the child has been separated from the parent for a minimum of six months under a dispositional decree;
  • that the court has entered a finding that reasonable efforts at family preservation or reunification are not required; OR
  • The child has been separated from the parent for at least 15 of the prior 22 months.

AND

  • The conditions that resulted in the child's removal will not be remedied; OR
  • The parent-child relationship poses a threat to the well-being of the child;
  • Termination is in the child's best interests; AND
  • There is a satisfactory plan for the care and treatment of the child. 50

If the parent does not seek to have his or her rights voluntarily terminated, and seeks to contest, the court will then appoint a Guardian Ad Litem or Court Appointed Special Advocate to represent the child's best interests. 51 The GAL or CASA will typically interview the parties and conduct home studies to determine if the child's needs and interests may be met and if the child's present arrangement continues to be in their best interests.

Still have questions? Call our Hamilton County family lawyers today!

When a parent or guardian is faced with unsettling or unsubstantiated inquiries of their abilities and decision-making for their child, a parent or guardian may feel as though they have no one to protect their fundamental rights with their children. The Carmel family law attorneys at Roberts Means Roncevic Kapela, are dedicated to our clients and strive to assist parents and guardians in protecting their relationship and rights with their children. If you or a family member is dealing with CHINS or any parental rights matter, we are ready to advocate on your behalf.

Now is the time to seek legal counsel! Call Roberts Means Roncevic Kapela today to setup a consultation with our firm in Carmel.

  1. Meyer v. Nebraska, 262 U.S. 390 (1923)
  2. Indiana Code § 31-34-1-1 et. seq
  3. Indiana Code § 31-34-1-1
  4. Indiana Code § 31-34-1-2(a)
  5. Indiana Code § 31-34-1-2(b)
  6. Indiana Code § 31-34-1-3
  7. Indiana Code § 31-34-1-4; Indiana Code § 31-34-1-5
  8. Indiana Code § 31-34-1-6
  9. Indiana Code § 31-34-1-7
  10. Indiana Code § 31-34-1-8
  11. Indiana Code § 31-34-1-9
  12. Indiana Code § 31-34-1-10
  13. Indiana Code § 31-34-1-11
  14. Indiana Code § 31-34-4-6
  15. See Indiana Code § 31-33-22-2 through Indiana Code § 31-33-22-5.
  16. Indiana Code § 31-33-5-1
  17. Indiana Code § 31-33-22-1
  18. Indiana Code § 31-33-6-1
  19. Indiana Code § 31-33-6-3
  20. Indiana Code § 31-33-8-1
  21. Indiana Code § 31-33-8-1
  22. Indiana Code § 31-34-8-7
  23. Indiana Code § 31-33-8-12
  24. Indiana Code § 31-33-17-3; Indiana Code § 31-39-8-1 et. seq.
  25. Indiana Code § 31-34-2-3
  26. Indiana Code § 31-34-3-1
  27. Indiana Code § 31-34-5-1
  28. Indiana Code § 31-33-13-1
  29. Indiana Code § 31-33-13-2
  30. Indiana Code § 31-33-13-3
  31. Indiana Code § 31-34-8-1
  32. Indiana Code § 31-34-9-1
  33. Indiana Code § 31-34-5-1
  34. Indiana Code § 31-34-5-2
  35. Indiana Code § 31-34-5-3
  36. Indiana Code § 31-34-10-4; Indiana Code § 31-34-10-5
  37. Indiana Code § 31-34-11-1
  38. Indiana Code § 31-34-11-3
  39. Indiana Code § 31-34-12-3
  40. Indiana Code § 31-34-12-4
  41. Indiana Code § 31-34-12-6
  42. Indiana Code § 31-34-18-1
  43. Indiana Code § 31-34-19-1
  44. Indiana Code § 31-34-20-1; Indiana Code § 31-34-20-3
  45. Indiana Code § 31-34-19-6
  46. Indiana Code § 31-34-19-7
  47. Indiana Code § 31-34-21-2
  48. Indiana Code § 31-34-21-5
  49. Indiana Code § 31-34-12-2
  50. Indiana Code § 31-35-2-4
  51. Indiana Code § 31-35-2-7

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