Guardianships and the Opioid Epidemic

    Indiana is in the midst of a public health emergency. The opioid epidemic has affected Hoosiers of all ages, from grandparents entrusted with the guardianship of their endangered grandchildren, to adults entrusted with the guardianship of their own parents who have become addicted to prescription drugs or controlled substances. 
    The percentage of children placed in foster care with parental drug use cited as a removal reason has recently increased by almost 8%, more than any other factor considered in the revocation of parental custody rights. According to Indiana law, parental interests are not absolute and are subordinate to those of a child. Statute states a minor may meet the definition of a Child In Need of Services (CHINS) if (1) “the child’s physical or mental condition is seriously impaired or seriously endangered” and (2) because of that endangerment, “needs care, treatment, or rehabilitation that (A) the child is not receiving; and (B) is unlikely to be provided or accepted without the coercive intervention of the court.” CHINS proceedings are intended to help families in crisis and protect children; CHINS proceedings are not sought for punitive action against parents.            
    In regard to drug use in utero, if a child is born with “any amount, including a trace amount, of a controlled substance or a legend drug [inconsistent with a prescription] in the child’s body,” the child meets the first requirement of identification as a potential CHINS case. 
    Whether or not parental drug abuse constitutes neglect that causes “serious impairment or endangerment” is dependent upon the facts of an individual scenario. 
    Guardianship can be temporary or permanent, the latter of which, for children, results in the termination of a parent’s rights. If an emergency exists regarding the welfare of an incapacitated person or minor that requires immediate action, a guardian has not been appointed, and no other person appears to have authority to act in the situation, the court may appoint a temporary guardian either on petition by any person or sua sponte (action taken by a judge without a prior motion or request from a party) . Generally, the family of an incapacitated person has authority to act on their behalf. A temporary guardian has only the responsibilities and powers ordered by the court necessary to prevent immediate and substantial injury to the protected individual.
    The permanent termination of a parent’s rights must be based on clear and convincing evidence that a parent is unable or unwilling to meet the needs of a child, and is viewed as a last resort to be employed only after all reasonable efforts to maintain parental custody rights have failed. A petition to terminate a parent-child relationship for a CHINS case may be filed by the attorney for the county office of child services, a Court Appointed Special Advocate (CASA), or a Guardian ad Litem (a person the court appoints to investigate what solutions for custody would be in the “best interests of the child”). 
    Indiana’s court system is overwhelmed by the surge in CHINS cases in the wake of the current opioid crisis, as is DCS. Case workers are overloaded, and courts have heard cases well outside of the normal business hours to keep up with the influx of new CHINS cases. In addition, there is a shortage of CASA volunteers, and an extensive waiting list of children who are wards of the court in need of an advocate to be appointed to their case. Legislation to alleviate the issues plaguing DCS has been delayed until 2019, and awaits a report due in June 2018 assessing the current state of DCS.
    Ferguson Law donates services to the Monroe County CASA, who represents the children affected by abuse and neglect.  Ferguson Law donates services to assist in representing the agency, which has been increasingly busy, often due to the effects of opioid abuse.  CASA programming in Monroe County, and the surrounding counties, suffers from the overwhelming crisis that opioids have caused in this country.  Ferguson Law urges any of you who have the time, patience and dedication, to call your local CASA, to provide volunteer services. They need attorney volunteers, and CASA representatives (non-lawyers), who can be trained to assist the kids directly by representing their best interests in court. The number for Monroe County CASA is 812-333-2272.