                                                                         FILED
                                                                    May 12 2016, 9:01 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                       Gregory F. Zoeller
Anderson, Indiana                                         Attorney General of Indiana
                                                          Robert J. Henke
                                                          James D. Boyer
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of F.S., T.W.,                              May 12, 2016
M.F., and B.F. (Minor Children)                           Court of Appeals Case No.
                                                          13A01-1505-JM-363
  and
                                                          Appeal from the Crawford Circuit
B.S. (Mother),                                            Court
Appellant-Respondent,                                     The Honorable Kenneth Lynn
                                                          Lopp, Judge
        v.
                                                          Trial Court Cause No.
                                                          13C01-1503-JM-18
Indiana Department of Child                               13C01-1503-JM-19
Services for Crawford County,                             13C01-1503-JM-20
Appellee-Petitioner.                                      13C01-1503-JM-21




Robb, Judge.




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




[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.

      Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016                       Page 2 of 32
      (“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 source2 contacted 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.


      Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016                              Page 3 of 32
      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.

      Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016                             Page 4 of 32
      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.

      Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016                          Page 5 of 32
      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

      Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016     Page 6 of 32
                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”).

       Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016                             Page 7 of 32
                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, 2015,7 the 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.

       Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016                            Page 8 of 32
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:



Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016      Page 9 of 32
            (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.


Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016     Page 10 of 32
       (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,


       Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016   Page 11 of 32
       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.

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

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

       Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016                            Page 14 of 32
       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.

       Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016                          Page 15 of 32
       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
       Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016     Page 16 of 32
       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


       Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016    Page 17 of 32
       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


       Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016    Page 18 of 32
       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 19 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 20 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 21 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 22 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 23 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 24 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 25 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.


       Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016                           Page 26 of 32
       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.

       Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016                        Page 27 of 32
               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

       Court of Appeals of Indiana | Opinion 13A01-1505-JM-363 | May 12, 2016   Page 28 of 32
       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 29 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 30 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 31 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.

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