In the Matter of T.D. (Minor Child), A Child in Need of Services, and W.D. (Father) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Dec 17 2015, 7:28 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory F. Zoeller
Michael B. Troemel Attorney General of Indiana
Lafayette, Indiana
Robert J. Henke
Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of T.D. (Minor December 17, 2015
Child), A Child in Need of Court of Appeals Case No.
Services, 79A04-1505-JC-372
Appeal from the Tippecanoe
and Superior Court
The Honorable Faith A. Graham,
W.D. (Father), Judge
Appellant-Respondent, Trial Court Cause No.
79D03-1408-JC-237
v.
The Indiana Department of
Child Services,
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Appellee-Petitioner
Crone, Judge.
Case Summary
[1] W.D. (“Father”) appeals a trial court order denying his motion for modification
of placement of his daughter T.D., previously designated a child in need of
services (“CHINS”). The Department of Child Services (“DCS”) has filed a
motion to dismiss for lack of subject matter jurisdiction. Finding that the
appealed order is not a final order and that Father did not perfect an
interlocutory appeal, we dismiss for lack of subject matter jurisdiction.
Facts and Procedural History
[2] In August 2014, when T.D. was four days old, DCS removed her from Father
and her mother S.E. (“Mother”) and placed her in a foster home with Mother’s
three older children, who had been placed in foster care on concerns that Father
had abused or failed to provide adequate supervision for them. The trial court
designated T.D. and her half siblings as CHINS. In November 2014, the trial
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court issued a dispositional order mandating, with respect to T.D., that Father
participate in ordered services, attend supervised visitation, and submit to drug
and alcohol screens. As part of the dispositional decree, the court ordered that
T.D. and her half siblings remain in their current foster care placement.
[3] Father appealed the dispositional order, challenging the sufficiency of evidence
to support T.D.’s CHINS designation, and another panel of this Court affirmed.
He did not challenge T.D.’s foster care placement in that appeal.
[4] In March 2015, Father filed a motion to modify T.D.’s placement in foster care,
requesting a relative placement with his mother (“Grandmother”). After a
hearing, the trial court denied the motion. In a written order entitled, “Order
on Early Review,” the trial court “advise[d] paternal grandmother to attend
Family Dynamics Program at a minimum prior to Father renewing his request
for modification of placement.” Appellant’s App. at 56, 59. Father now
appeals.
Discussion and Decision
[5] Father appeals the trial court’s order, charactering it as a final, appealable order.
In response, DCS has filed a motion to dismiss for lack of subject matter
jurisdiction. This Court’s authority to exercise appellate jurisdiction is
generally limited to appeals from final judgments. Ramsey v. Moore, 959 N.E.2d
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246, 251 (Ind. 2012); Ind. Appellate Rule 5. Indiana Appellate Rule 2(H) states
in pertinent part,
A judgment is a final judgment if … it disposes of all claims as to
all parties … [or] … the trial court in writing expressly
determines under Trial Rule 54(B) … that there is no just reason
for delay and in writing expressly directs the entry of judgment …
under Trial Rule 54(B) as to fewer than all the claims or parties.
Indiana Trial Rule 54(B) states in pertinent part,
A judgment as to one or more but fewer than all of the claims or
parties is final when the court in writing expressly determines
that there is no just reason for delay, and in writing expressly directs
entry of judgment, and an appeal may be taken upon this or other
issues resolved by the judgment; but in other cases a judgment,
decision or order as to less than all the claims and parties is not
final.
(Emphasis added.) “The purpose of Trial Rule 54(B) is to avoid piecemeal
litigation and appeal of various issues in a case and to preserve judicial
economy by protecting against the appeal of orders that are not yet final.” Front
Row Motors, LLC v. Jones, 5 N.E.3d 753, 757 (Ind. 2014) (citation omitted).
“[U]nless the trial court uses the ‘magic language’ set forth in Trial Rule 54(B),
an order disposing of fewer than all claims as to all parties remains
interlocutory in nature.” In re Estate of Botkins, 970 N.E.2d 164, 167 (Ind. Ct.
App. 2012).
[6] Concerning the issue of a child’s placement, Indiana Code Section 31-34-20-
1(a)(3) authorizes the trial court to remove a CHINS from her home and place
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her in another home or shelter care facility. By virtue of its ability to determine
placement of the child, the trial court has exclusive jurisdiction over custody
decisions, until the parties are either discharged or the cause is transferred. E.R.
v. Marion Cnty. Office of Family & Children, 729 N.E.2d 1052, 1060 (Ind. Ct. App.
2000). The trial court must review the placement decision at least once every
six months. Ind. Code § 31-34-21-2. Placement decisions are continuing in
nature, subject to change while the CHINS proceedings are pending, and do not
finally determine placement of the child. E.R., 729 N.E.2d at 1059-60.
[7] With respect to T.D.’s placement, we note that the trial court clearly anticipated
that Father would renew his request for modification, specifying both at the
hearing and in its written findings that Grandmother should “attend [the]
Family Dynamics Program at a minimum prior to Father renewing his request
for modification of placement.” Tr. at 46; Appellant’s App. at 59. See also
Appellant’s App. at 59 (trial court’s written finding “that the objectives of the
dispositional decree have not been accomplished”). The order itself was titled,
“Order on Early Review.” Id. at 56. The trial court did not include the “magic
language” necessary for finality, and Father did not petition the trial court to
have the order deemed final pursuant to Trial Rule 54(B). In re Estate of Botkins,
970 N.E.2d at 167. As such, the order was not a final, appealable order.
[8] Where, as here, there is a formal periodic review of a placement decision
resulting in a formal determination, it is reviewable in an interlocutory appeal.
E.R., 729 N.E.2d at 1060. Indiana Appellate Rule 14 governs the filing of
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appeals from interlocutory orders. 1 Rule 14(A) outlines the circumstances in
which a person may take an interlocutory appeal as a matter of right, none of
which apply here. Rule 14(B) describes the procedures necessary to perfect a
discretionary interlocutory appeal, that is, certification by the trial court and
acceptance by this Court. Father did not follow those procedures here and, as
such, review of this interlocutory order is no longer available to him.
[9] In sum, the appealed order did not contain the language required by Trial Rule
54(B) for finality and is therefore not appealable as a final order. Moreover, the
appealed order does not fall within the limited circumstances under which an
interlocutory appeal of right may be taken, and Father did not the take steps
necessary to perfect a discretionary interlocutory appeal pursuant to Appellate
Rule 14(B). As a result, we lack subject matter jurisdiction over his appeal.
Accordingly, we dismiss.
[10] Dismissed.
Vaidik, C.J., and Bailey, J., concur.
1
Appellate Rule 14.1 allows DCS to file expedited appeals in limited circumstances in CHINS cases where
the trial court does not follow DCS recommendations regarding placement and/or services. There is no
similar provision for an expedited appeal filed by a parent.
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