MEMORANDUM DECISION ON
REHEARING                                                                  FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Jul 08 2016, 8:57 am

this Memorandum Decision shall not be                                      CLERK
                                                                       Indiana Supreme Court
regarded as precedent or cited before any                                 Court of Appeals
                                                                            and Tax Court
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
Trenna S. Parker                                          Gregory F. Zoeller
Noblesville, Indiana                                      Attorney General of Indiana
                                                          Robert J. Henke
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of J.F. (Minor                              July 8, 2016
Child),                                                   Court of Appeals Case No.
                                                          29A02-1508-JC-1306
And
                                                          Appeal from the Hamilton Circuit
L.F. (Mother),                                            Court
Appellant-Respondent,                                     The Honorable Paul A. Felix,
                                                          Judge
        v.
                                                          Trial Court Cause No.
                                                          29C01-1502-JC-196
The Indiana Department of
Child Services,
Appellee-Petitioner.




Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision on Rehearing 29A02-1508-JC-1306 | July 8, 2016 Page 1 of
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[1]   In a memorandum decision, our court concluded that there was sufficient

      evidence to support the trial court’s adjudication of J.F. (Child) as a Child in

      Need of Services (CHINS). In re J.F., No. 29A02-1508-JC-1306, 2016 WL

      1064602, at *7 (Ind. Ct. App. Mar. 17, 2016). Appellant-Respondent, L.F.

      (Mother), has filed a petition for rehearing, asserting that this court failed to

      address the matter of probable cause as raised in her appellate brief. We now

      grant rehearing for the limited purpose of addressing Mother’s claim that the

      trial court erred in finding that there was probable cause to authorize the filing

      of a CHINS petition. See Ind. Code § 31-34-9-2(2) (requiring a juvenile court to

      [a]uthorize the filing of a petition if the court finds probable cause to believe

      that the child is a [CHINS]”).


[2]   Although a detailed recitation of the facts is set forth in our original decision,

      we reiterate that on February 16, 2015, the Indiana Department of Child

      Services (DCS) recommended the filing of a CHINS petition based on the

      ongoing domestic violence between Mother and the Child’s father; concerns of

      the parents’ alcohol impairment and substance abuse; and concerns of Mother’s

      mental health and its impact on her ability to care for the Child. In addition,

      Mother had refused to cooperate with DCS’ attempt to investigate the

      allegations raised regarding the Child’s welfare. Pursuant to Indiana Code

      section 31-34-9-2, on February 23, 2015, the trial court conducted a hearing to

      determine if DCS had presented probable cause to file a CHINS petition.

      Despite receiving notice and her appearance outside the courtroom prior to the

      hearing, Mother did not stay for the hearing. The trial court proceeded in her

      Court of Appeals of Indiana | Memorandum Decision on Rehearing 29A02-1508-JC-1306 | July 8, 2016 Page 2 of
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      absence and determined that there was sufficient probable cause to warrant the

      filing of a CHINS petition. On March 4, 2015, the trial court filed its Order on

      probable cause. Thereafter, Mother did not seek to appeal the Order.


[3]   In accordance with the statutory requirements for CHINS proceedings, the trial

      court subsequently conducted an initial hearing and, after the Child was

      removed from Mother’s custody, a detention hearing. On April 27, 2015, and

      May 28, 2015, the trial court conducted a fact-finding hearing, and on June 30,

      2015, the trial court adjudicated the Child to be a CHINS. A dispositional

      hearing was held on July 27, 2015, and on August 15, 2015, the trial court

      issued a dispositional order, requiring Mother to participate in reunification

      services. On August 26, 2015, Mother appealed. Despite the fact that the trial

      court had issued an order adjudicating the Child to be a CHINS, in her

      appellate brief, Mother challenged the probable cause Order, which was issued

      more than five months prior to Mother’s appeal. In our memorandum

      decision, we determined that there was a final, appealable order and

      accordingly addressed the sufficiency of the evidence supporting the CHINS

      adjudication. Mother now asserts that a rehearing is appropriate because we

      failed to address the merits of her contention that the trial court erred by finding

      probable cause to warrant the filing of a CHINS petition in its March 4, 2015

      Order.


[4]   In its appellate brief, DCS argued that the probable cause Order “is

      interlocutory in nature, and is not a final appealable order.” (Appellee’s Br. p.

      23). Our court “has jurisdiction in all appeals from final judgments.” Bacon v.
      Court of Appeals of Indiana | Memorandum Decision on Rehearing 29A02-1508-JC-1306 | July 8, 2016 Page 3 of
      5
      Bacon, 877 N.E.2d 801, 804 (Ind. Ct. App. 2007) (citing Ind. Appellate Rule

      5(A)), trans. denied. “A final judgment disposes of all issues as to all parties,

      thereby ending the particular case and leaving nothing for future

      determination.” Id. (citing Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003)).

      “Whether an order is a final judgment governs our subject matter jurisdiction,

      and it can be raised at any time by any party or by the court itself.” Id. (citing

      Georgos, 790 N.E.2d at 451).


[5]   In a CHINS proceeding, the probable cause finding does not dispose of any

      claims; rather, it simply permits DCS to proceed with the case by filing a

      CHINS petition. Even Mother appears to concede that the probable cause

      Order was a “preliminary order” rather than a final, appealable order. (Reh’g

      Petition p. 6). As such, Mother had no standing to appeal “unless the order is

      an appealable interlocutory order.” Bacon, 877 N.E.2d at 804. “An

      interlocutory order is one made before a final hearing on the merits and requires

      something to be done or observed but does not determine the entire

      controversy.” Id. We find that this is precisely what the probable cause Order

      does. In order to appeal an interlocutory order, the trial court must certify the

      order, and our court must accept jurisdiction. Id. (quoting App. R. 14(B)). No

      such certification and acceptance occurred in this case.


[6]   Accordingly, because the probable cause Order was not a final order and

      Mother did not seek an interlocutory appeal, her appeal of the probable cause

      Order was subject to dismissal. Id. Nevertheless, we have a strong preference

      for addressing matters “on their merits when possible.” Kelly v. Levandoski, 825
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      N.E.2d 850, 856 (Ind. Ct. App. 2005), trans. denied. In the case before us, we

      were presented with the trial court’s CHINS adjudication—a final order based

      on the fact that the trial court had conducted a dispositional hearing—and a

      record that enabled us to determine that sufficient evidence existed to support

      that adjudication. See In re J.V., 875 N.E.2d 395, 399 (Ind. Ct. App. 2007)

      (finding that “[o]nly after a dispositional hearing has been held is there a final,

      appealable order because the disposition finally determines the rights of the

      parties”), trans. denied. Therefore, we affirm our prior opinion in all respects.


[7]   Najam, J. and May, J. concur




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