Court Upholds Removal of Child From Parents, Related to Child's Transgender Identity

The facts are complicated, and involve a good deal more than just disagreement as to gender identity; but it seems to me like an important controversy.

From In the Matter of A.C., decided today by the Indiana Court of Appeals (Judge Terry Crone, joined by Judges Nancy Vaidik and Robert Altice):

M.C. (Mother) and J.C. (Father) … appeal the trial court's dispositional order (the Dispositional Order) following their child A.C.'s … admission that Child is a child in need of services (CHINS) pursuant to Indiana Code Section 31-34-1-6 (CHINS-6) because Child was substantially endangering Child's own health….

[O]n May 11, 2021, DCS received a report alleging that Mother was verbally and emotionally abusing then-sixteen-year-old Child by using rude and demeaning language toward Child regarding Child's transgender identity, and as a result, Child had thoughts of self-harm. On May 21, 2021, DCS received a second report alleging that the Parents were verbally and emotionally abusing Child because they do not accept Child's transgender identity, the abuse was getting worse, and the Parents were being mean to Child due to Child's transgender identity. A DCS family case manager (FCM) investigated these reports, met with the Parents, Child, and Child's siblings, and spoke by phone to a representative from Child's residential school.

The FCM prepared a preliminary inquiry report (PIR), which indicated the following: Mother and Child both stated that Child had been suffering from an eating disorder for the past year but had yet to be evaluated by a medical professional; the Parents had withdrawn Child from school, and DCS was unaware of the family's intent to enroll Child in a new school for the upcoming school year; Child had been in therapy, but the Parents had discontinued it; Child did not feel mentally and/or emotionally safe in the home; Mother said things such as "[Child's preferred name] is the bitch that killed my son"; and Child "would be more likely to have thoughts of self-harm and suicide if [Child] were to return to the family home due to mental and emotional abuse." The PIR also indicated that Mother stated that the family was planning to work with a doctor at a clinic for eating disorders, but Mother refused to sign any consents so that DCS could verify any medical concerns or past therapy services.

On May 28, 2021, DCS filed a proposed CHINS petition in the trial court, alleging that Child was a CHINS on two bases: Child's physical or mental condition was seriously impaired or seriously endangered due to the Parents' neglect pursuant to Indiana Code Section 31-34-1-1 (CHINS-1) and/or Child's physical or mental health was seriously endangered due to injury by the Parents' acts or omissions pursuant to Section 31-34-1-2 (CHINS-2).

On June 2, 2021, the trial court held a combined initial and detention hearing, at which it found that there was probable cause to believe that Child was a CHINS and that Child's detainment was necessary to safeguard Child's health. At the close of the hearing, the trial court cautioned the Parents to avoid discussing Child's transgender identity during visitation. Following the hearing, the court issued the Initial/Detention Order finding that it was in Child's best interest to be removed from the home due to the Parents' "inability, refusal or neglect to provide shelter, care, and/or supervision at the present time." The Initial/Detention Order also ordered that Child keep the current appointments to address Child's eating disorder and for a psychological evaluation and that the Parents "have unsupervised visitation so long as certain topics are not addressed."

On October 26, 2021, DCS filed a motion for leave to amend the CHINS petition to add an allegation that Child was substantially endangering Child's own health and that Child was a CHINS pursuant to the CHINS-6 statute. The motion indicates that the amendment was appropriate because Child's eating disorder was worsening, Child had lost "a significant amount of weight," Child was throwing away and hiding food and neglecting to eat full meals, and Child did not believe that Child had an eating disorder, had lost weight, or needed treatment. The Parents did not object to the amendment. The trial court granted the motion.

On November 15, 2021, the trial court held a hearing, at which the parties informed the court that they had reached an agreement that DCS would dismiss the CHINS-1 and CHINS-2 allegations, unsubstantiate and expunge the record of any reports related to the Parents, and proceed under the CHINS-6 statute. Child then admitted to being a CHINS-6, and the Parents verified that they had no objection to Child's admission. The court found a factual basis for the admission, accepted the admission, and adjudicated Child a CHINS.

Following the hearing, the court issued an order on the amended CHINS petition, finding that Child was a CHINS-6 because Child admitted that Child had an eating disorder that jeopardized Child's health and the eating disorder was "fueled partly because of [Child's] self-isolation from [the Parents] which is a behavior which is likely to reoccur" if Child is placed back in the Parents' home. The court also found that remaining in the Parents' care would be contrary to Child's welfare based on the allegations that Child admitted to and ordered that Child should continue to be removed from the Parents' home….

The court concluded that "[t]he trial court's decision to continue Child's placement outside the Parents' home is not clearly erroneous":

As the court emphasized, this is an extreme case where Child has reacted to a disagreement with the Parents by developing an eating disorder and self-isolating, which seriously endangers Child's physical, emotional, and mental well-being. The court's decision to continue Child's removal was not a response to the Parents' acts or omissions relating to their beliefs regarding transgender individuals, and the court was not treating the case as if it were based on a CHINS-1 or a CHINS-2 adjudication. Rather, the trial court's focus was clearly on Child's medical and psychological health needs, and the court's decision to continue Child's placement outside the home is consistent with the CHINS-6 statute. We find no error here….

The court then moved on to reject the parents' constitutional arguments, starting with the parental rights:

A parent has a fundamental right to raise his or her child without undue influence by the state. "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[.]" However, "that right is limited by the State's compelling interest in protecting the welfare of children." "[T]he State has the authority under its parens patriae power to intervene when parents neglect, abuse, or abandon their children."

The Parents assert that the State does not have a compelling interest because they have not neglected, abused, or abandoned Child. We disagree. The unchallenged CHINS-6 adjudication establishes that the State has a compelling interest in protecting Child's welfare. As previously noted, the CHINS-6 adjudication establishes that Child substantially endangers Child's own health and needs care, treatment, and rehabilitation that Child is not receiving, and that the coercive intervention of the court is necessary to ensure that Child engages in needed treatment. As our supreme court has observed, the CHINS element that the care, treatment, or rehabilitation that the child needs is unlikely to be provided or accepted without the coercive intervention of the court "guards against unwarranted State interference in family life." …

It rejected the parents' religious freedom arguments:

At the initial hearing, Father testified that the Parents cannot affirm Child's transgender identity or use Child's preferred pronouns based on their sincerely held religious beliefs. On appeal, the Parents contend that "the state's actions clearly burdened [their] religious beliefs by forcing them to choose between (1) violating their religious beliefs by affirming their child's transgender ideology or (2) losing custody of [Child] with the knowledge that the state's placement would directly contradict their religious beliefs." We disagree that the Dispositional Order created such a choice.

As discussed in Section 2, the Dispositional Order was based on Child's medical and psychological needs and not on the Parents' disagreement with Child's transgender identity. We observe that at the dispositional hearing, the FCM testified that it was not DCS's position to continue Child's removal from home if the Parents continued to exercise their religious views by affirming their view of Child's transgender identity. The FCM explained that it "was not a matter of who's right or who's wrong […], it's just more of a matter of ensuring [Child's] safety." She also stated that it is "DCS's hope that family therapy will help to rectify any conflict between parents and child so that child can safely return home." She attested that DCS had not made any decision in the case based on the Parents' religious beliefs. Additionally, Mother acknowledged that no one from DCS ever made a statement to her indicating that DCS staff disapproved of the Parents' religious beliefs.

Thus, Child's continued removal from the home was not based on the fact that the Parents did not accept Child's transgender identity, and reunification is not contingent on the Parents violating their religious beliefs and affirming Child's transgender identity. We conclude that the Dispositional Order does not impose a substantial burden on the Parents' free exercise of religion.

Even if the Parents were able to demonstrate that the Dispositional Order imposes a substantial burden on their religious freedom, their claim that Child's continued removal from the home violates the Free Exercise Clause would fail. The United States Supreme Court has observed that "neither rights of religion nor rights of parenthood are beyond limitation" and that "the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare; and … this includes, to some extent, matters of conscience and religious conviction." Simply put, "[t]he right to practice religion freely does not include liberty to expose … the child … to ill health or death." Thus, protecting a child's health and welfare is well recognized as a compelling interest justifying state action that is contrary to a parent's religious beliefs. See Jehovah's Witnesses v. King Cnty. Hosp. Unit No. 1 (W.D. Wash. 1967) (concluding that government may order that child be given blood transfusion over parents' religious objection), aff'd, 390 U.S. 598 (1968) (one sentence affirmation); In re Sampson (N.Y. 1972) (affirming court's order for blood transfusion necessary to perform required surgery on child's deformed face over parent's religious objection); Schmidt v. Mut. Hosp. Servs., Inc. (Ind. Ct. App. 2005) ("[A] parent's decision to refuse lifesaving medical treatment for a minor child [based on the parent's religious principles] must yield to the State's interest in protecting the health and welfare of the child.").

The CHINS-6 adjudication and the factual basis establish that Child's health was substantially endangered and that the care, treatment, and rehabilitation would likely not occur without the court intervention. Thus, the State has a compelling interest in protecting Child's physical and mental health.

In addition, Child's removal from the home is narrowly tailored to serve the State's compelling interest based on the same analysis that supports our conclusion that continued removal from the home is in Child's best interest. The FCM testified that maintaining Child's placement outside the home is essential to focus on treating Child's eating disorder and providing therapy, and Child's mental health evaluations both showed that Child suffered from significant psychological disorders and conditions. Although Child was placed outside the home, Parents have unsupervised visitation with Child. Therefore, we conclude that the Dispositional Order does not violate the Free Exercise Clause.

And the court rejected the parents' free speech claim:

[T]he trial court informed the Parents that it would continue to enforce its earlier order requiring them to refrain from discussing Child's transgender identity during visitation. The Parents objected on First Amendment grounds and asserted that they "would need to be able to have that conversation with their child at some point." The court explained,

I am leaving that Order in place at this time. I don't believe it is a first amendment issue under the circumstances of this case. You are certainly entitled to your opinion on that and your objection is noted. [B]ut if that discussion is had within the family therapy that is being Ordered[,] then that is perfectly alright to have those discussions[.] [B]ut during visitations I am Ordering that that topic not be discussed until further Order of the Court…. I am going to need a therapist or someone to tell me it is a safe conversation … and I am just not sure it's in the best interest of [Child] to have that conversation at this point yet.

On appeal, the Parents contend that the restriction of this topic during visitation violates their freedom of expression…. However, "[i]t is well established that not all speech is afforded the same protection under the First Amendment." "[S]peech concerning public affairs" receives heightened protection because it "is more than self-expression; it is the essence of self-government.'" "In contrast, speech on matters of purely private concern is of less First Amendment concern."

In re Paternity of G.R.G. (Ind. Ct. App. 2005), provides guidance in balancing a parent's free speech rights and the welfare of the child. There, the court concluded that an order restraining the parents from discussing their disputes with the child was not an impermissible prior restraint for two reasons. First, the court reasoned that the order focused solely on private speech rather than speech that was important to "the marketplace of ideas." Second, the court explained that the order reasonably furthered the child's best interests:

The order in the case before us did not preclude Father and Mother from disagreeing with each other. Nor did it preclude Father from discussing with any other third party his disputes with Mother. Rather, it obviously reflects the trial court's reasonable belief that exposing G.R.G. to such matters would not be in the child's best interests.

{In a recent case, another panel of this Court upheld an order prohibiting each parent from disparaging the other in their child's presence, concluding that "the order furthers the compelling State interest in protecting the best interest of [the child] and does not violate the First Amendment." Israel v. Israel (Ind. Ct. App. 2022), trans. pending.}

The order in this case, like the order in G.R.G., involves only the Parents' private speech with Child rather than public speech. Moreover, the Parents' contention that the State "did not have a compelling interest in protecting the welfare of the child because the parents were already doing so" fails once again. The CHINS-6 adjudication establishes that the State has a compelling interest in protecting Child's physical and psychological health.

We also find the restriction narrowly tailored to address the State's compelling interest. Child was adjudicated a CHINS because Child has an eating disorder that jeopardizes Child's health. The trial court recognized that Child's eating disorder and self-isolation were connected to the discord at home regarding Child's transgender identity. Thus, the limitation of discussion of this topic directly targets the State's compelling interest in addressing Child's eating disorder and psychological health. Further, the order is narrowly tailored because it restricts the Parents from discussing the topic with Child only during visitation but permits the topic to be discussed in therapy, which permits the family to work on conflict management so that they will eventually be able to safely talk about it outside family therapy. Accordingly, we conclude that the order restricting conversation of this topic outside of family therapy is a permissible prior restraint.

Congratulations to Robert J. Henke, who represented the state.