In the Matter of the Tr.S. and N.S. (Minor Children) and To.S. (Mother) To.S. (Mother) v. The Indiana Department of Child Services , 2016 Ind. App. LEXIS 411 ( 2016 )

FILED
OPINION Nov 15 2016, 9:11 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Carolyn J. Nichols Gregory F. Zoeller
Noblesville, Indiana Attorney General of Indiana
Robert J. Henke
James D. Boyer
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of Tr.S. and N.S. November 15, 2016
(Minor Children) and To.S. Court of Appeals Case No.
(Mother); 29A02-1603-JC-680
Appeal from the Hamilton Circuit
To.S. (Mother), Court
Appellant-Respondent, The Honorable Paul A. Felix,
Judge
v. The Honorable Todd L. Ruetz,
Magistrate
The Indiana Department of Trial Court Cause Nos.
Child Services, 29C01-1412-JC-1444
29C01-1412-JC-1445
Appellee-Petitioner. 29C01-1412-JC-1446
29C01-1412-JC-1447
May, Judge.
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[1] To.S. (“Mother”) appeals the trial court’s Order Approving Permanency Plan
and On Review Hearing, 1 which suspended parent-child visitation and other
reunification services, modified the previous dispositional order, and changed
the permanency plan for Mother’s two youngest children, Tr.S. and N.S.
(“Children”). She raises two issues on appeal, one of which we find dispositive:
whether the trial court’s order modifying the permanency plan is an appealable
final order. Because we conclude the order is not an appealable final judgment,
we dismiss.
Facts and Procedural History
[2] Mother and Z.S. (“Father”) 2 are the parents of Tr.S. and N.S., born March 4,
2012, and June 5, 2013, respectively. 3 In November 2014, Mother and Father
were arrested for heroin possession and drug use. The Department of Child
Services (“DCS”) became involved and removed Children from the home on
December 1, 2014. On December 4, 2014, DCS filed petitions alleging
Children were Children in Need of Services (“CHINS”). After a fact-finding
1
The trial court issued, and Mother appeals, two separate, but identical Orders, each issued with regard to
one of Children. For purposes of this opinion, we will refer to the Orders as one order.
2
Father does not participate in this appeal.
3
Mother has two other children, M.H. and B.S., from fathers different than Z.S. At the time of this appeal,
M.H. was in her maternal grandmother’s custody and B.S. was in his biological father’s custody. On
February 11, 2016, the trial court ordered M.H. to remain in her grandmother’s custody and B.S. to remain
in his father’s custody, with concurrent plans of reunification with Mother for both M.H. and B.S. Mother
does not challenge, in this appeal, the trial court’s orders with respect to M.H. and B.S. (Appellant’s Br. at
10.)
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hearing at which Mother admitted routine illegal drug use, the court
adjudicated Children as CHINS. On August 10, 2015, the court entered a
Dispositional Order requiring Mother and Father to participate in reunification
services. Mother was required to participate in individual therapy, substance
abuse assessments, random urinalysis, and home based case management
services. Additionally, Mother was permitted weekly supervised visitation with
Children.
[3] On November 18, 2015, DCS filed a Motion to Suspend Visitation between
Mother and Children, alleging Children were having negative reactions to
visitation with Mother. On December 28, 2015, the court held a fact-finding
hearing regarding DCS’s request to suspend visitation. DCS’s family case
manager and Children’s therapist testified at the hearing. Children’s therapist
testified N.S. was not eating and Tr.S. was “expressing fear” after a visit with
Mother. (Tr. at 46.) Children’s therapist recommended visitation be
suspended. The court suspended visitation.
[4] On February 11, 2016, the trial court held a Permanency Hearing. It found
Mother had not complied with the Dispositional Order. It further found
visitation between Mother and Children should remain suspended and, in the
best interests of Children, DCS should initiate proceedings for termination of
the parent-child relationship. Additionally, the court ordered DCS was no
longer required to provide reunification services to Mother, with the exception
of random drug screens. The court then ordered the permanency plan for
Children changed from reunification to termination of the parent-child
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relationship and subsequent adoption. The order stated, “[t]he projected date
for finalization of [Children’s] permanency plan is July 31, 2016.” (App. Vol. II
at 33.) The court set the case for a Permanency and Review Hearing on August
11, 2016.
Discussion and Decision
[5] Mother appeals the trial court’s February 11, 2016, order. She contends we
should characterize the order as a final, appealable order. In response, DCS
argues we should dismiss this appeal for lack of subject matter jurisdiction.
[6] Our authority to exercise appellate jurisdiction is generally limited to appeals
from final judgments, certain interlocutory orders, and agency decisions. In re
D.W., 52 N.E.3d 839, 841 (Ind. Ct. App. 2016), trans. denied; see also Ind.
Appellate Rule 5 (defining cases over which Court of Appeals has jurisdiction).
Here, Mother argues we should consider her appeal “on the merits as a direct
appeal from a final judgment.” (Appellant’s Br. at 6.)
[7] Under Indiana Appellate Rule 2(H), a judgment is final if:
(1) it disposes of all claims as to all parties;
(2) the trial court in writing expressly determines under Trial Rule 54(B)
or Trial Rule 56(C) that there is no just reason for delay and in writing
expressly directs the entry of judgment (i) under Trial Rule 54(B) as to
fewer than all the claims or parties, or (ii) under Trial Rule 56(C) as to
fewer than all the issues, claims or parties;
(3) it is deemed final under Trial Rule 60(C);
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(4) it is a ruling on either a mandatory or permissive Motion to Correct
Error which was timely filed under Trial Rule 59 or Criminal Rule 16; or
(5) it is otherwise deemed final by law.
[8] The trial court’s February 11, 2016, order meets none of the above
requirements. We have repeatedly held such orders are not final appealable
orders. See In re D.W., 52 N.E.3d at 841 (holding an order denying a mother’s
motion for modification of a permanency plan is not a final appealable
judgment); 4 In re K.F., 797 N.E.2d 310, 315 (Ind. Ct. App. 2003) (holding a
permanency plan ordering case to proceed with termination of parental rights
was not a final judgment). 5
[9] Mother is essentially appealing the denial of reunification services. She states
she “believes she is required to request needed reunification services at the
earliest opportunity during the CHINS proceeding, or risk permanent waiver of
her request for continuing and additional services.” (Appellant’s Br. at 16.)
She contends the issue “will not be available for review in a subsequent appeal
from the involuntary termination of her parental rights.” (Id. at 24.) Mother is
correct that failure to provide services cannot serve as a basis for later attacking
a termination order. See In re J.W., Jr., 27 N.E.3d 1185, 1190 (Ind. Ct. App.
4
At the outset of this argument, Mother claims D.W. should not be given precedential value in her appeal
because her “appellate process was already underway before the decision in In re D.W. was issued.”
(Appellant’s Br. at 25.) This argument is without merit because D.W. did not create new law; it simply
applied the long-standing rule of In re K.F., 797 N.E.2d 310, 315 (Ind. Ct. App. 2003).
5
Mother urges us to rely on In re E.W., 26 N.E.3d 1006 (Ind. Ct. App. 2015), but it is distinguishable for
reasons explained in D.W., 52 N.E.3d at 841, and we decline to revisit that analysis.
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2015) (noting requirement for DCS to provide reasonable services was not a
requisite element of parental rights termination statute and DCS’s failure to
provide services could not serve as basis to attack termination order), trans.
denied. However, Mother could challenge the trial court’s decision to terminate
reunification services by filing an interlocutory appeal. 6
[10] Indiana Appellate Rule 14(B) outlines the certification procedure for parties
pursuing an appeal from an interlocutory order. It describes the time for filing a
motion requesting certification of an interlocutory order, content of the motion,
and grounds for granting interlocutory appeals. Ind. Appellate Rule
14(B)(1)(a)-(c). Indeed, Rule 14(B)(1)(c)(iii) contemplates the very situation
Mother describes: that “the remedy by appeal is otherwise inadequate.”
Because Rule 14(B) provides Mother an opportunity to bring her case before us
properly, we decline to adopt her reasoning to consider this order a final
judgment. (See Appellant’s Br. at 15 (“Mother repeats her concern that if she is
not afforded the opportunity to appeal the court’s decision to withhold
requested services, that this important right may forever be lost and may not be
available for later review.”).)
6
Mother claims the trial court ordered her to file a Notice of Appeal and “counsel was not ordered to ‘pursue
a discretionary interlocutory appeal.’” (Appellant’s Br. at 25.) Appellate Rule 9 outlines the different
procedures for initiating appeals. Listed within Rule 9 are both appeals from final judgments and
interlocutory appeals. It is counsel’s role, not the trial court’s, to assess and determine the appropriate course
of action for pursuing an appeal under Rule 9.
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[11] Nor do we find any merit in Mother’s assertion that filing an interlocutory
appeal is unreasonable to expect of parties because it requires counsel to make a
“difficult decision.” (Id. at 21.) Mother argues appellants need more than
thirty days to examine the record and “make informed, sound decisions
regarding the issues to be raised on appeal, and on the propriety of pursuing
interlocutory certification over a blind, hasty filing of a Notice of Appeal.” (Id.
at 29.) We disagree that an appellant would need to undergo such an analysis
to file a notice of appeal. An appellant merely needs to determine what kind of
order he or she is appealing – a final judgment or an interlocutory order – and
proceed accordingly under Indiana Appellate Rule 9(A). If an appellant is
unsure, he or she could err on the side of caution and request certification. We
therefore are not persuaded by Mother’s claim that determining what type of
appeal to file is a difficult decision requiring more than thirty days. 7
7
Mother also argues for a change in the law. Mother contends “the decisions in In re K.F. and In re D.W.
should not be permitted to conflict with the parents’ right to receive and request appropriate reunification
services” and therefore K.F. and D.W. “should be modified or overruled.” (Appellant’s Br. at 31-32.) She
reasons “[i]f parents are required to seek out and request reunification services, parents must also have the
right to immediate appellate review, in the event such requests are denied.” (Id. at 32.) Furthermore, she
contends in light of DCS’s right to certain expedited interlocutory appeals under Indiana Appellate Rule
14.1, “there must be a corresponding right of a parent” to file similar appeals. (Id. at 32-33). To the extent
Mother wants a change of the controlling statutes or appellate rule, that is not our function. See Moore v.
State, 949 N.E.2d 343, 345 (Ind. 2011) (“The judicial function is to apply the laws as enacted by the
legislature.”); T.B. v. Indiana Dep’t of Child Servs., 971 N.E.2d 104, 110 (Ind. Ct. App. 2012) (“It is not the
proper function of this court to ignore the clear language of a statute and, in effect, rewrite the statute in order
to render it consistent with a particular view of sound public policy.”), trans. denied. Mother’s argument she
“must also have access to immediate appellate review,” (Appellant’s Br. at 32), should have been made in a
motion for certification of an interlocutory appeal. This argument is not grounds for characterizing the trial
court’s order as a final, appealable order.
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[12] We agree with DCS that Mother is essentially “pre-appealing” a possible
judgment terminating her parental rights. (Appellee’s Br. at 9.) As DCS
correctly points out, at the time of this appeal, Mother still had the full
opportunity to seek services and demonstrate to the trial court at her next
hearing that she was making progress.
[13] Because Mother has not followed the proper procedure to seek a discretionary
interlocutory appeal, we lack subject matter jurisdiction. Accordingly, we
dismiss. See K.F., 797 N.E.2d at 315 (finding Court of Appeals lacked
jurisdiction where parents appealed from permanency plan order without
proceeding under Indiana Appellate Rule 14).
[14] Dismissed.
Kirsch, J., and Crone, J., concur.
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