Preview:

FILED
Oct 10 2008, 9:44 am

FOR PUBLICATION

of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: ERIN L. BERGER Vanderburgh County Public Defender Agency Evansville, Indiana

ATTORNEY FOR APPELLEE: KIMBERLY NIGHTINGALE Department of Child Services Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA
IN THE MATTER OF: K.B. and B.L., AMANDA BROOKS LAY, Mother, Appellant, vs. DEPARTMENT OF CHILD SERVICES, Appellee. ) ) ) ) ) ) ) ) ) ) )

No. 82A03-0806-JV-266

APPEAL FROM THE VANDERBURGH SUPERIOR COURT The Honorable Brett Niemeier, Judge Cause No. 82D01-0804-JC-92 82D01-0804-JC-93

October 10, 2008

OPINION - FOR PUBLICATION BARNES, Judge

Case Summary Amanda Lay appeals the trial court's order granting the media access to K.B.'s and B.L.'s child in need of services ("CHINS") records. We reverse. Issue Lay raises one issue, which we restate as whether the trial court properly allowed the media to access the children's CHINS records. Facts On April 1, 2008, K.B.'s and B.L.'s three-year-old brother, K.L., died. On April 2, 2008, CHINS petitions were filed regarding K.B. and B.L. That same day, they were determined to be CHINS. On April 4, 2008, the State filed criminal charges against Lay and her husband, the children's father, Terry Lay, for K.L.'s death and K.B.'s and B.L.'s battery and neglect. On April 14, 2008, the trial court, apparently sua sponte and without notice or a hearing, issued an order granting the media access to K.B.'s and B.L.'s CHINS records. In its order, the trial court stated: In accordance with Indiana Code 31-39-2-10 the Court hereby grants access to any interested media representative to the chronological case summaries, petitions, motions and orders concerning the child in need of service causes 82D010804-J-92 [sic] and 82D01-0804-JC-093 which are the children of Amanda Lay. The Court further orders the children's names or other identifying information such as dates of birth or social security numbers are to remain confidential and not reported to the general public. Due to the graphic nature or identifying features in the photographs, the Court will not release the photographic evidence which was presented to the Court. The Vanderburgh Superior Court Juvenile Division has previously allowed media representatives to observe and 2

report on child in need of service cases in September 2000 and May 2007. This limited access was granted to educate the public concerning these unique and sometimes tragic cases. Due to our community's interest in the ongoing welfare of the Lay children, this Court is granting access to the media so the public will gain new insight into the workings of the Court and the Department of Child Services. Appellant's App. p. 13. On April 16, 2008, Lay filed a motion to correct error. Lay's motion included as an exhibit an April 15, 2008 article from the Evansville Courier & Press detailing the children's injuries and asserting that the trial court would allow media representatives to attend "hearings in his court room regarding the custody of the youngest children of Amanda Brooks [Lay] and Terry Lay, but the names of the children will not be made public." Id. at 17. On April 24, 2008, the trial court held a hearing on Lay's motion to correct error. The chronological case summary ("CCS") indicates that at the hearing the Vanderburgh Count Department of Child Services ("DCS") echoed Lay's concerns but left the decision to the trial court's discretion. The trial court denied Lay's motion to correct error. Lay now appeals. Analysis Initially, we point out that the record in this case is not well-developed. This can be attributed in part to the fact that the trial court issued its order without notice to the parties and without conducting a hearing prior to issuing the order. In fact, there is no indication that any person actually requested access to the children's records. Further, at the hearing on Lay's motion to correct error, the DCS appears to have echoed Lay's concerns about releasing the records. Finally, because the order was issued less than two 3

weeks after the investigation and resulting CHINS determination, an extensive record has not yet been developed. As far as we can tell, the heart of Lay's complaint comes from the release of the "caseworker's report of preliminary inquiry & investigation," which was filed on April 2, 2008. Appellant's App. p. 18. This report is very detailed and was quoted at length in the April 15, 2008 newspaper article. It is on this limited record that we base our decision. As to the merits, Lay claims that the trial court improperly released the children's CHINS records. When interpreting a statute, our goal is to determine and give effect to the intent of the legislature in promulgating it. Porter Dev., LLC v. First Nat'l Bank of Valparaiso, 866 N.E.2d 775, 778 (Ind. 2007). "Our primary resource for this

determination is the language used by the legislature, and thus our interpretation begins with an examination of the statute's language." Id. "We presume that the words of an enactment were selected and employed to express their common and ordinary meanings." Id. Where the statute is unambiguous, we will read each word and phrase in this plain, ordinary, and usual sense, without having to resort to rules of construction to decipher meanings. Id. The interpretation of a statute is an issue of law, which we consider de novo on appeal. Id. We begin first with the release of the caseworker's report of preliminary inquiry and investigation. Indiana Code Section 31-33-18-1(a), which specifically controls the investigation of child abuse and neglect, provides in part:

4

Except as provided in section 1.5[1] of this chapter, the following are confidential: (1) Reports made under this article (or IC 31-6-11 before its repeal). (2) Any other information obtained, reports written, or photographs taken concerning the reports in possession of: (A) the division of family resources; (B) the county office; or (C) the department. Thus, pursuant to Indiana Code Section 31-33-18-1(a), the investigatory report and any other information obtained during the investigation of a report of child abuse or neglect is confidential. The release of an investigatory report is governed by Indiana Code Section 31-3318-2, which lists the limited persons to whom an investigatory report may be made available. This list does not include media representatives.2 Given the specific language of this section, it is clear that the legislature intended to limit the persons who had access

1

Indiana Code Section 31-33-18-1.5 applies to the disclosure of records pertaining to a child whose death or near fatality may have been the result of abuse, abandonment, or neglect. Although this section applies to K.L.'s death, it does not apply to the investigatory report of K.B. and B.L. because their cases do not involve a death or near fatality. See Ind. Code

Download In the Matter of K.B. and B.L., and A.B.L..pdf

Indiana Law