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.)

• Court: Indiana Court of Appeals
• Decided: December 17, 2015
• Docket: 79A04-1505-JC-372
• Status: Published

Opinion

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,

Court of Appeals of Indiana | Memorandum Decision 79A04-1505-JC-372 | December 17, 2015 Page 1 of 6 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

Court of Appeals of Indiana | Memorandum Decision 79A04-1505-JC-372 | December 17, 2015 Page 2 of 6 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

Court of Appeals of Indiana | Memorandum Decision 79A04-1505-JC-372 | December 17, 2015 Page 3 of 6 246, 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

Court of Appeals of Indiana | Memorandum Decision 79A04-1505-JC-372 | December 17, 2015 Page 4 of 6 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

Court of Appeals of Indiana | Memorandum Decision 79A04-1505-JC-372 | December 17, 2015 Page 5 of 6 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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