In the Matter of: D.W. (Minor Child), and, T.W. (Mother) v. The Ind. Dept. of Child Services , 2016 Ind. App. LEXIS 85 ( 2016 )

FILED
Mar 24 2016, 9:09 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger Gregory F. Zoeller
Merrillville, Indiana Attorney General of Indiana
Robert J. Henke
David E. Corey
Deputy’s Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of: March 24, 2016
Court of Appeals Cause No.
45A03-1507-JC-842
D.W. (Minor Child),
Appeal from the Lake Superior
and, Court
The Honorable John M. Sedia,
T.W. (Mother), Judge
Trial Court Cause No.
45D06-1112-JC-1023
Appellant-Respondent,
v.
The Indiana Department of
Child Services,
Appellee-Petitioner.
Barnes, Judge.
Court of Appeals of Indiana | Opinion 45A03-1507-JC-842 | March 24, 2016 Page 1 of 6
Case Summary
[1] T.W. (“Mother”) appeals the trial court’s order terminating her visitation with
D.W. and denying her motion to modify the permanency plan in a CHINS
action. We dismiss.
Issue
[2] We address one dispositive issue, which we restate as whether the trial court’s
order is a final judgment.
Facts
[3] D.W. was born to Mother in August 2008. In December 2011, the Department
of Child Services (“DCS”) filed a petition alleging that D.W. was a child in
need of services (“CHINS”) because Mother was arrested and charged with
“four felony counts of criminal confinement; 2 felony counts of battery and 6
felony counts of neglect of a dependent.”1 App. p. 26. The charges apparently
related to another of Mother’s children. D.W. was placed in foster care. In
February 2012, the trial court found that D.W. was a CHINS.
[4] Visitation between Mother and D.W. was suspended in November 2012. In
February 2013, the trial court changed the permanency plan to termination of
1
DCS also filed a petition alleging that J.G., D.W.’s older sibling, was a CHINS. This appeal concerns only
D.W.
Court of Appeals of Indiana | Opinion 45A03-1507-JC-842 | March 24, 2016 Page 2 of 6
parental rights. In December 2013, the trial court held a permanency review
hearing, and the plan remained termination of Mother’s parental rights to D.W.
[5] In January 2014, Mother filed a motion for modification of the permanency
plan, for reinstatement of her visitation, and for a bonding assessment. After
multiple hearings on pending issues, including Mother’s motion for
modification, the trial court entered an order in June 2015 denying Mother’s
motion to modify the permanency plan, granting DCS’s motion to discontinue
visitation, ordering that all parenting time between Mother and D.W. cease,
and ordering counsel to coordinate with the trial court regarding a hearing on
DCS’s petition to terminate Mother’s parental rights.2
[6] In July 2015, Mother filed a notice of appeal and indicated that the appeal was
interlocutory pursuant to Indiana Appellate Rule 14(B)(3). Mother amended
her notice of appeal in September 2015 and indicated that she was appealing a
final judgment.
Analysis
[7] Mother appeals the trial court’s order, charactering it as a final, appealable
order. In response, DCS argues that we should dismiss this appeal for lack of
subject matter jurisdiction. This court’s authority to exercise appellate
jurisdiction is generally limited to appeals from final judgments, certain
2
In April 2013, the trial court authorized DCS to file a petition to terminate Mother’s parental rights. DCS
apparently filed a petition to terminate Mother’s parental rights, but we were not provided with information
on that filing.
Court of Appeals of Indiana | Opinion 45A03-1507-JC-842 | March 24, 2016 Page 3 of 6
interlocutory orders, and agency decisions. In re K.F., 797 N.E.2d 310, 314
(Ind. Ct. App. 2003); Ind. Appellate Rule 5. Mother makes no argument that
the trial court’s order qualifies as an appealable interlocutory order pursuant to
Indiana Appellate Rule 14 or that this is an agency decision. Rather, Mother
argues that the trial court’s order was a final judgment.
[8] Under Indiana Appellate Rule 2(H),
A judgment is a final judgment 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);
(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.
The trial court’s order, however, does not meet any of these qualifications. In
fact, we have held under similar circumstances that such orders are not final
appealable judgments. See In re K.F., 797 N.E.2d 310, 314-15 (Ind. Ct. App.
Court of Appeals of Indiana | Opinion 45A03-1507-JC-842 | March 24, 2016 Page 4 of 6
2003) (holding that a permanency plan in a CHINS action is not a final
judgment).
[9] Despite the lack of a final, appealable judgment, Mother argues that we should
address her appeal based on In re E.W., 26 N.E.3d 1006 (Ind. Ct. App. 2015).
There, a mother appealed the trial court’s order ceasing all visitation between
her and her child in a CHINS action. We addressed mother’s appeal even
though the trial court’s order did not seem to qualify as a final judgment. The
teenaged child’s permanency plan had been changed to “another planned
permanent living arrangement” (“APPLA”). E.W., 26 N.E.3d at 1008. We
noted:
The practical effect of a change of plan to APPLA is that Child
will remain a ward of the State until she reaches the age of
majority. She will either remain in foster care or live in a facility
or group home, and she will continue to receive the treatment
and services she needs. Her CHINS case will remain open until
she turns eighteen
Id. at 1009. We concluded that, “[b]y ordering that all contact between Mother
and Child cease, the trial court is effectively ending that relationship until Child
is a legal adult, at which time it will be her choice to resume contact with
Mother.” Id. Consequently, we determined that “[w]hether or not this is
technically a final judgment, it certainly operates as one.” Id. As a result, we
addressed the mother’s arguments.
[10] E.W. is distinguishable from this case. As the State points out, “E.W. was a
case where termination of parental rights was not likely to ever be raised
Court of Appeals of Indiana | Opinion 45A03-1507-JC-842 | March 24, 2016 Page 5 of 6
because the permanency plan for that child was APPLA.” Appellee’s Br. p. 25.
D.W. is much younger than the child in E.W., and APPLA was not part of the
permanency plan here. Consequently, we conclude that E.W. is inapplicable.
Because the trial court’s order is not a final judgment, we lack subject matter
jurisdiction over Mother’s appeal. See Ramsey v. Moore, 959 N.E.2d 246, 253-54
(Ind. 2012) (holding that our supreme court lacked subject matter jurisdiction
where the appealed order was not a final judgment). We dismiss this appeal.
Conclusion
[11] We dismiss Mother’s appeal for lack of subject matter jurisdiction.
[12] Dismissed.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Opinion 45A03-1507-JC-842 | March 24, 2016 Page 6 of 6