Indiana parents lose custody after court rules not 'affirming' child's gender identity is 'abuse'

The Court of Appeals in Indiana on Friday upheld a trial court’s decision to remove from a family’s home their child because the parents did not acknowledge their child’s transgender identity, and the child began suffering from anorexia. The court determined that the refusal to go along with the child's gender identity constituted abuse.

Parents MC and JC filed an appeal against an Initial/Detention Order claiming that the Dispositional order, as well as the trial court’s prior order, are "erroneous," and violate their constitutional rights to care, custody, and control of their child, as well as their right to exercise their religion, as well as their freedom of speech. The court ruled that the parents’ appeal was "moot," and declined to address it.

The decision recalls that on May 11, 2021, the Indiana Department of Child Services (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."

DCS received another report ten days later "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 family case manager (FCM) investigated the matter, meeting with the parents, child, and siblings, and speaking with a representative from the child’s residential school.

A preliminary inquiry report (PIR) from the FCM revealed that both the mother and child said that the child had been suffering from an eating disorder during the following year, and that the child had yet to be evaluated by a medical professional.

The report also stated that the parents had withdrawn the child from school and had not indicated that they were going to reenroll in a new school, the child had been in therapy but the parents had discontinued it, and the "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 report stated.

On May 28, 2021, the DCS filed a CHINS petition in the trial court. According to DCS, CHINS stands for "Child in Need of Services."

Initially, the department sought CHINS-1 and CHINS-2 petitions. These designations state that the child is being physically or mentally neglected or abused by a parent or guardian.

On June 2, 2021, the trial court found that there was probable cause to designate the child as a CHINS, and that "Child’s detainment was necessary to safeguard Child’s health."

The court ruled that it was in the 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 parents were allowed unsupervised visitations with their child, but were instructed not to discuss their child’s gender identity during these visitations.

On October 26, 2021, the DCS filed a motion to amend their CHINS petition, changing their CHINS designation to CHINS-6, "allegation that Child was substantially endangering Child’s own health."

"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 court document states. The parents did not object to the motion.

In a trial court hearing in November of that year, DCS stated that they would dismiss the CHINS-1 and CHINS-2 allegations, and expunge the record of reports related to the parents, and proceed under the CHINS-6 statutes.

Following this hearing, the court issued an order amending the CHINS petition, stating that the child’s declining health and eating disorder was “fueled partly because of [Child’s] self-isolation from [the Parents] which is a behavior which is likely to reoccur” if the child was placed back in the parents’ home.

On December 8, 2021, a dispositional hearing was held in which the court told the parents that the order prohibiting them from discussing the child’s gender identity during visitations would still stand, but that the topic could be discussed during mandated family therapy sessions.

In their appeal, the parents’ challenge of the Initial/Detention Order was deemed moot by the court, and their allegations that the court’s decision to continue placing the child outside their home was not erroneous.

The appeals court cited the trial court in their ruling, stating "The ultimate goal is for family reunification […] the reality is this is an extreme example of a child having a certain lifestyle that the parent[s] don’t agree with. That has been going on for all time. There ha[ve] always been issues where children do things that the parent[s] don’t agree with be it religiously or morally or whatever."

"That happens and that is not a reason to remove a child from the home, but when it as in this case there is a clear nexus between that issue and the medical and psychological issues that the child is having that is when we get issues that we have here today that the State is now involved in and because of those issues the child is a ward of DCS and those decisions are going to have to be made through the Court so I certainly understand the objections and the parent[s’] views and I am not discounting the parent[s’] views at all," the court document continued.

"I am not taking any issue with the child’s views or the parent[s’] views. They are differing views and that happens in life. [B]ut to the extent that we now have these medical issues that again, there is a [nexus] between this discord about the lifestyle and the medical issues. That has to get resolved and this [is] going to take some therapy and that is going to take some cooperation from all involved," the document added.

Mental health evaluations of the child revealed that they suffer from "significant psychological disorders and conditions that would benefit from therapy." Additionally, a clinical neuropsychologist found that the child was diagnosed with major depressive disorder, generalized anxiety disorder, parent-child relationship problems, and gender dysphoria.

The parents also argued that the order violates their constitutional rights.

Firstly, the parents argued that the order violates their fundamental rights to the care, custody, and control of their child under the Fourteenth Amendment to the United States Constitution.

The appeals court argued that the order was in fact not in violation of this constitutional right, but that the state has the power to intervene when the safety of the child comes into question.

"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," the court stated.

They stated that the CHINS-6 designation means that the child is a danger to themselves, and is not receiving the necessary care, and that if the court did not intervene they would not have received said care.

The parents also argued that the order violates their rights to the free exercise of their religion.

The court said that the amendment "embraces two concepts,— freedom to believe and freedom to act," citing Cantwell v. Connecticut.

"The freedom to believe cannot be restricted by law, but the freedom to act is 'subject to regulation for the protection of society,'" the court added.

The father testified at the initial hearing that the parents cannot affirm their child’s transgender identity or use their child’s preferred pronouns because of their religious beliefs.

The parents appealed 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," the court responded, saying that reunification does not hinge on the parents revoking their religious beliefs.

The parents additionally argued that the court blocking discussions of gender identity during visitations violated their freedom of speech.

The court stated that "not all speech is afforded the same protection under the First Amendment," and that the order is intended to protect the child from additional harm.

"We conclude that the Parents’ appeal of the Initial/Detention Order is moot and decline to address it. In addition, we conclude that Child’s continued removal is not contrary to the CHINS-6 statute and is supported by sufficient evidence that it is in Child’s best interest," the court said in conclusion.

"We also conclude that Child’s continued removal from the home does not violate the Parents’ constitutional rights to the care, custody, and control of Child or to their rights to the free exercise of religion.

"The Parents have the right to exercise their religious beliefs, but they do not have the right to exercise them in a manner that causes physical or emotional harm to Child. Finally, we conclude that the trial court’s temporary restriction on the discussion of Child’s transgender identity outside of family therapy does not violate the Parents’ free speech rights. Therefore, we affirm the Dispositional Order," the court said.