                                                                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.




Court of Appeals of Indiana | Opinion 29A02-1603-JC-680 | November 15, 2016             Page 1 of 8
[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.)

      Court of Appeals of Indiana | Opinion 29A02-1603-JC-680 | November 15, 2016                         Page 2 of 8
      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

      Court of Appeals of Indiana | Opinion 29A02-1603-JC-680 | November 15, 2016   Page 3 of 8
      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);



      Court of Appeals of Indiana | Opinion 29A02-1603-JC-680 | November 15, 2016   Page 4 of 8
               (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.

      Court of Appeals of Indiana | Opinion 29A02-1603-JC-680 | November 15, 2016                          Page 5 of 8
       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.

       Court of Appeals of Indiana | Opinion 29A02-1603-JC-680 | November 15, 2016                           Page 6 of 8
[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.

       Court of Appeals of Indiana | Opinion 29A02-1603-JC-680 | November 15, 2016                             Page 7 of 8
[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.




       Court of Appeals of Indiana | Opinion 29A02-1603-JC-680 | November 15, 2016   Page 8 of 8
