In the Matter of: M.W., a Child Alleged to be in Need of Services, S.R. (Mother) v. Indiana Department of Child Services , 130 N.E.3d 114 ( 2019 )

FILED
Jun 19 2019, 8:54 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Erin L. Berger Curtis T. Hill, Jr.
Evansville, Indiana Attorney General
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: M.W., a Child June 19, 2019
Alleged to be in Need of Court of Appeals Case No.
Services, 18A-JC-2452
Appeal from the
S.R. (Mother), Vanderburgh Superior Court
The Honorable
Appellant-Respondent,
Brett J. Niemeier, Judge
v. The Honorable
Renee A. Ferguson, Magistrate
Indiana Department of Child Trial Court Cause No.
Services, 82D04-1807-JC-1414
Appellee-Petitioner
Vaidik, Chief Judge.
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Case Summary
[1] S.R. (“Mother”) appeals the trial court’s placement of M.W. (“Child”) after it
found that Child is a child in need of services (CHINS). Because Child has
since been placed with Mother and the CHINS case closed, we dismiss this
appeal as moot.
Facts and Procedural History
[2] Child was born to Mother and Me.W. (“Father”) (collectively, “Parents”) in
2003. At some point Parents split up and Father was granted custody of Child.
In July 2018, Father and fifteen-year-old Child lived in Evansville with a
woman named A.W., who had been named a legal custodian of Child, and
Mother lived in Chicago. On July 23, the Department of Child Services (DCS)
removed Child and filed a CHINS petition alleging that Father was abusing
substances and told DCS workers that he no longer wants Child in his house.
At the initial hearing, Father denied the allegations. Mother appeared by phone
and asked if she could come get Child. Judge Pro Tem Jillian Reed said that to
do that Mother would need to file a petition to modify custody or would need
to undergo an investigation under the Interstate Compact on the Placement of
Children (ICPC), which provides a way to send children to new homes across
state lines and allows the receiving state to investigate whether a child can be
placed in a proposed home. See Bester v. Lake Cty. Office of Family and Children,
839 N.E.2d 143, 145 n.2 (Ind. 2005). After Judge Reed explained Mother’s
options, the following colloquy occurred:
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THE COURT: Do you have any objection to [Child] being
found to be a child in need of services?
[MOTHER]: Yeah, [Child] still needs (indiscernible). And
I think that [Child] shouldn’t be abused in
any kinda way or form. [Child is] a little kid.
THE COURT: So you don’t –
[MOTHER]: Yeah, [Child] will need services.
THE COURT: So you don’t have any objection to [Child]
receiving services and being removed from
[Father]?
[MOTHER]: (Indiscernible) immediately. (Indiscernible).
Tr. p. 16. Judge Reed set a fact-finding hearing for August 21 and told Mother
that “because you’re the non-offending parent you are not ordered to appear. It
is discretionary for you to be there.” Id. at 17. Mother did not appear for the
fact-finding hearing, and Magistrate Renee A. Ferguson heard evidence against
Father and adjudicated Child a CHINS.
[3] On September 18, Magistrate Ferguson held a dispositional hearing, and
Mother appeared by phone. She was also represented by counsel, who asked
the court “to reconsider the finding of probable cause as to Mother, dismiss the
CHINS case, and place [Child] in Illinois with Mother.” Id. at 24. Mother’s
attorney argued that there is “current case law in Indiana that says that an
ICPC’s not necessary when we’re dealing with a biological parent, which is the
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case that we have here.” Id. at 24-25. Magistrate Ferguson asked DCS if there
were any allegations against Mother in the CHINS petition, and DCS
responded, “No.” Id. at 25. Magistrate Ferguson denied placement of Child
with Mother without further investigation, specifically, undergoing the ICPC
process, explaining:
The Court is well aware of the Appellate Court’s position on an
ICPC and respectfully disagrees with their position. If you read
31-28-4-1, the enactment of the compact, it – in article 1 purpose
and policy – clearly states that what the purpose of this is. It
states clearly – you know, it defines sending agency, receiving
agency. Placement it clearly defines. Conditions of placement,
article 3, subsection d, “A child shall not be sent, brought, or
cause to be sent or brought into a receiving State until
appropriate public authorities in the receiving State shall notify
the sending agency in writing to the effect that the proposed
placement does not appear to be contrary to the interest of the
child.”
And we go on further in article 10 of ICPC construction and
severability, “provisions of this compact shall be liberally
construed to effect the compact’s purposes.” And as previously
stated, the purpose of the compact is not just to have a child go to
an approved party or biological party, but also to effect the best
interest of the child. The Court has no way of knowing what the
best interests of a child are given that it does not know the
background of the person receiving the child. So therefore I will
order that the Vanderburgh County Department of Child
Services conduct an interstate placement of compact [sic] review
with the Mother in the State of Illinois.
Id. at 25-26. Magistrate Ferguson awarded wardship of Child to DCS and
placed Child in an independent-living program. Vanderburgh Superior Court
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Judge Brett J. Niemeier then issued a written order confirming Magistrate
Ferguson’s decision.
[4] In October 2018, Mother filed her appeal. In March 2019, after Mother filed
her appellate brief, DCS filed with the trial court a motion to terminate its
wardship of Child, explaining that Mother had completed the ICPC process
and that Child was placed with her. The trial court granted the motion,
ordering DCS’s wardship of Child terminated and the CHINS case closed. See
Order on Wardship Termination, Cause No. 82D04-1807-JC-1414 (Mar. 5,
2019).
Discussion and Decision
[5] On appeal, Mother asks us to do two things: (1) set aside the CHINS
adjudication and (2) place Child with her. As to the first request, Mother is
precluded from asserting that there is insufficient evidence to support the
CHINS adjudication when, at the initial hearing, she agreed that Child “will
need services.” Tr. p. 16; see Wabash Grain, Inc. v. Smith, 700 N.E.2d 234, 237
(Ind. Ct. App. 1998) (“judicial estoppel prevents a party from asserting a
position in a legal proceeding inconsistent with one previously asserted”), trans.
denied. Moreover, without Child being adjudicated a CHINS, the trial court
could not order the placement Mother sought. That is, Mother wanted Child to
be placed with her, but the trial court could not have done so without first
adjudicating Child a CHINS.
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[6] Mother’s real argument is that the “trial court erred in requiring an approved
ICPC prior to placing [Child] with [Mother].” Appellant’s Br. p. 18. DCS
agrees. See Appellee’s Br. p. 22. We do as well. This Court has made clear
that the ICPC does not apply to placement with an out-of-state parent. In re
B.L.P., 91 N.E.3d 625, 630 (Ind. Ct. App. 2018) (“we hold as plainly and
unambiguously as possible: unless and until the statute is amended, the ICPC
does not apply to placement with an out-of-state parent.”); see also In re D.B., 43
N.E.3d 599, 604 (Ind. Ct. App. 2015), trans. denied. Here, Magistrate Ferguson
said, “The Court is well aware of the Appellate Court’s position on an ICPC
and respectfully disagrees with their position.” Tr. p. 25. Then, Judge
Niemeier issued an order signing off on her decision.
[7] The decisions of this Court are binding upon trial courts. Heber v. Indianapolis
Metro. Police Dept., 58 N.E.3d 995, 997 (Ind. Ct. App. 2016). We caution
Magistrate Ferguson and Judge Niemeier that the Indiana Code of Judicial
Conduct requires judicial officers to uphold the law. See Ind. Judicial Conduct
Rule 1.1. Vertical stare decisis requires judicial officers to follow this Court’s
opinions despite their own personal opinions otherwise. See In re C.F., 911
N.E.2d 657, 658 (Ind. Ct. App. 2009) (“vertical stare decisis is an obligation to
follow the decisions of superior tribunals”).
[8] That said, Mother completed the ICPC, Child is placed with her, and the
CHINS case is closed. Since Mother has already gotten what she asks for on
appeal, this Court cannot provide effective relief upon the issue. See Matter of
Lawrance, 579 N.E.2d 32, 37 (Ind. 1991) (“a case is deemed moot when no
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effective relief can be rendered as to the parties before the court”). Therefore,
Mother’s appeal is dismissed as moot.
[9] Dismissed.
Kirsch, J., and Altice, J., concur.
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