                                                                               FILED
                                                                          May 19 2016, 8:25 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Danielle L. Gregory                                       Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Robert J. Henke
                                                          David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re the Matter of:                                      May 19, 2016
R.H. (Minor Child)                                        Court of Appeals Case No.
   Child in Need of Services                              49A04-1509-JC-1402
  and                                                     Appeal from the Marion Superior
T.H. (Mother),                                            Court
Appellant-Respondent,                                     The Honorable Marilyn Moores,
                                                          Judge
        v.
                                                          The Honorable Gary Chavers,
                                                          Judge Pro-Tem
The Indiana Department of
                                                          The Honorable Danielle Gaughan,
Child Services,                                           Magistrate
Appellee-Petitioner.                                      Trial Court Cause No.
                                                          49D09-1411-JC-2664



Robb, Judge.




Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016                            Page 1 of 15
                                 Case Summary and Issue
[1]   R.H. was adjudicated a child in need of services (“CHINS”) shortly after her

      birth. During the CHINS proceedings, the Marion County Department of

      Child Services (“DCS”) filed a motion seeking an order that reasonable efforts

      to reunify R.H. and T.H. (“Mother”) were not required. The juvenile court

      issued such an order on August 17, 2015, and thereafter held a permanency

      hearing on September 15, 2015, and changed the permanency plan for R.H.

      from reunification to adoption. Mother appeals the no reasonable efforts order,

      raising one issue for our review: whether the juvenile court’s order finding that

      reasonable efforts to reunify the family are not required violated her rights

      under Title II of the Americans with Disabilities Act (“ADA”) and Section 504

      of the Rehabilitation Act (“RA Section 504”). Concluding the juvenile court

      did not violate Mother’s rights in finding DCS was not required to make

      reasonable reunification efforts, we affirm.



                            Facts and Procedural History
[2]   Mother gave birth to R.H., her eleventh child, on November 2, 2014.1 None of

      Mother’s children are in her custody. Her parental rights to two of her children

      were involuntarily terminated in 2006 and 2007, respectively, and at least three

      of her children were adopted by others. At the time of R.H.’s birth, a CHINS




      1
       R.H.’s father, D.C., signed a consent to her adoption during the CHINS proceedings and does not
      participate in this appeal.

      Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016                      Page 2 of 15
      proceeding was in progress with regard to two of Mother’s other children.

      Mother had no permanent residence, instead residing in various motels with her

      mother and step-father, and she had not been employed since 2007.


[3]   DCS took R.H. into custody immediately after her birth and filed a petition

      alleging R.H. was a CHINS five days later. Following a joint initial and

      detention hearing, the juvenile court determined that “it is contrary to [R.H.’s]

      welfare to remain [in] the care [of Mother]” and that “reasonable efforts have

      been made to prevent or eliminate the need for removal based on the numerous

      services offered [to Mother] in other cases . . . .” Transcript at 8. The juvenile

      court therefore ordered R.H.’s continued placement in foster care with

      supervised parenting time between Mother and R.H. DCS recommended

      Mother complete clinical and parenting assessments and cooperate in home-

      based case management and therapy. Mother began weekly therapy and

      supervised visits in late 2014 or early 2015.


[4]   The juvenile court held a fact-finding hearing on April 21, 2015, at which

      Mother did not appear. DCS stated at the beginning of the fact-finding hearing

      that it intended to file a motion seeking a reasonable efforts exception. Several

      DCS service providers testified, including family case managers Ashley Butler-

      Panter and Alice Mann, and Mother’s therapist and visitation supervisor,

      Tammy Bush. Mother had completed the parenting assessment with Bush,

      although Bush testified she “didn’t really get a lot of information out of the

      assessment” due to Mother’s inability to focus and answer questions. Id. at 49.

      Mother was also participating in therapy with Bush, but Bush felt that although

      Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016   Page 3 of 15
      continued therapy might help Mother function better in her own life, it would

      not assist Mother in learning to take care of her children. Bush described

      Mother as “very loving towards [R.H.]” during visitation, but expressed

      concerns about Mother’s lack of awareness of safety issues (such as needing to

      be reminded at each visit to use the belt on the changing table when changing

      R.H.’s diapers), her inability to multitask (such as managing R.H. while also

      handling diapers and wipes), and her difficulty judging things such as when and

      how much R.H. needs to eat. Id. at 53-54. Ultimately, Bush did not feel

      continued services would lead to reunification:

              [S]he’s been involved with DCS for a very long time and . . . you
              guys have offered her multiple services over the years that
              haven’t been successful because she’s chosen not to follow
              through and she feels that she can do it herself. In some ways
              she’s very street wise. In some ways, she’s very innocent. But
              the bottom line is she’s homeless. She has no money. She has
              no job. She doesn’t want to apply for SSI. She doesn’t want our
              help with her case work. She doesn’t want our help with finding
              a job or filing for SSI.


      Id. at 71. At the conclusion of the hearing, the juvenile court adjudicated R.H.

      a CHINS.


[5]   On May 7, 2015, DCS filed a Motion for No Reasonable Efforts Exception.

      The motion alleged the parent-child relationship between Mother and two of

      R.H.’s half-siblings had been involuntarily terminated, two of Mother’s children

      had been placed in the custody of their fathers, and six of Mother’s children had

      been adopted. The motion requested the juvenile court find that reasonable

      Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016   Page 4 of 15
      efforts to reunify Mother with R.H. were not required pursuant to Indiana Code

      section 31-34-21-5.6(b)(4) and (5). The juvenile court held a hearing on the

      motion over two days in June 2015 and a third day in August 2015. Bush

      testified much as she had at the fact-finding hearing that although Mother was

      “very loving and very kind” during visitations with R.H., she has to be

      reminded of the same things every week, such as using the belt on the changing

      table and feeding R.H. appropriately. Id. at 96. “She tries really hard but it is

      just her knowledge and her skills aren’t good enough to parent safely on her

      own.” Id. at 97. Although Mother had been briefly employed during these

      proceedings, by the final day of the hearing, she was no longer employed, she

      was still moving from place to place, and it remained difficult for service

      providers and case workers to reach her on any given day. Bush did not

      believe, whether services continued for six months or a year, that Mother would

      ever have the skills and judgment to care for R.H. At the conclusion of the

      hearing, the juvenile court took the matter under advisement and set a hearing

      for September that would either be a dispositional hearing or a permanency

      hearing depending on the court’s ruling on DCS’s motion for a reasonable

      efforts exception.


[6]   On August 17, 2015, the juvenile court entered an order granting DCS’s

      motion, finding that reasonable efforts to reunify Mother and R.H. are not

      required because

              Mother has been repeatedly offered services with regard to [R.H.]
              and with regard to her older children. Services have repeatedly

      Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016   Page 5 of 15
               closed unsuccessfully because of Mother’s lack of participation or
               inability to make progress. Additionally, Mother has cognitive
               limitations that inhibit her ability to make progress in the therapy
               she has recently participated in. Mother has been homeless for at
               least two and a half years and has been unemployed since 2007
               until recent employment at McDonald’s. Mother is no longer
               employed and her housing continues to be unstable. Mother has
               resisted the efforts of service providers to assist her with locating
               housing and applying for disability.


      Appendix of Appellee at 4. The juvenile court suspended Mother’s parenting

      time and set a permanency hearing for September 15, 2015.


[7]   Following the permanency hearing, the juvenile court issued an order changing

      the permanency plan from reunification to adoption. Mother filed a notice of

      appeal the same day.



                                 Discussion and Decision
                                       I. Appealable Order
[8]   The sole issue raised by Mother on appeal is whether the juvenile court erred in

      granting DCS a reasonable efforts exception. DCS asserts that Mother’s appeal

      is premature and should be dismissed because there is not yet a dispositional

      order.


[9]   A CHINS proceeding is initiated when DCS requests the juvenile court

      authorize the filing of a petition alleging the child is a CHINS. Ind. Code § 31-

      34-9-1. The juvenile court must authorize the filing of a petition if it finds


      Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016      Page 6 of 15
       probable cause to believe the child is a CHINS. Ind. Code § 31-34-9-2. Unless

       the parents admit the allegations of the petition, the juvenile court must hold a

       fact-finding hearing within sixty days. Ind. Code § 31-34-11-1. If the court

       finds that a child is a CHINS, it must enter judgment accordingly, order a

       predisposition report, and schedule a dispositional hearing. Ind. Code § 31-34-

       11-2. The dispositional hearing is to be held within thirty days of finding the

       child is a CHINS. Ind. Code § 31-34-19-1(a). At the dispositional hearing, the

       court must consider the alternatives for the child’s care, treatment,

       rehabilitation, or placement and the necessity, nature, and extent of the parent’s

       participation. Id. The juvenile court must enter written findings and

       conclusions in its dispositional decree and may, among other things, order

       supervision of the child by DCS, place the child in another home, award

       wardship of the child to DCS, or order the child’s parents to complete family

       services recommended by DCS. Ind. Code §§ 31-34-19-10; 31-34-20-1.

       Periodic review and permanency hearings must be conducted. Ind. Code §§ 31-

       34-21-2 (review hearings at least every six months); 31-34-21-7 (permanency

       hearings at least every twelve months). Ordinarily, DCS is required to make

       reasonable efforts during the CHINS proceedings to preserve or reunify the

       family. Ind. Code § 31-34-21-5.5. At any phase of a CHINS proceeding,

       however, the juvenile court may make a finding that reasonable efforts to

       reunify a child with her parent are not required. Ind. Code § 31-34-21-5.6.


[10]   We have held that the dispositional decree is the final appealable order from a

       CHINS proceeding because it finally determines the rights of the parties. In re


       Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016   Page 7 of 15
       J.V., 875 N.E.2d 395, 399 (Ind. Ct. App. 2007), trans. denied. All the other

       proceedings are “mere preliminary step[s]” to the juvenile court determining at

       a dispositional hearing what is to be done with the children. In re M.R., 452

       N.E.2d 1085, 1088 (Ind. Ct. App. 1983); see also Smith v. Marion Cnty. Dep’t of

       Pub. Welfare, 635 N.E.2d 1144, 1148 (Ind. Ct. App. 1994) (“[T]he time for

       appealing an issue in a CHINS proceeding commences when the dispositional

       decree is entered.”), trans. denied. However, in M.R., we also noted

       “[t]erminology may be confusing. Sometimes what is denominated an ‘order’

       may really be a final judgment and vice versa. The focus is on what is actually

       done. A rose by any other name is still a rose.” 452 N.E.2d at 1088 (citations

       omitted).


[11]   The State is correct that there is no specific dispositional order in the record of

       this case nor does the chronological case summary reflect that a specific

       dispositional hearing had been held at the time the juvenile court found DCS

       was not required to make reasonable efforts to reunify the family. It is unclear

       why this is, as the juvenile court is statutorily required to hold a dispositional

       hearing within thirty days of a CHINS finding. See Ind. Code § 31-34-19-1.

       R.H. was formally adjudicated a CHINS on April 21, 2015. 2 The order Mother




       2
         The juvenile court’s order on the fact-finding hearing set an “Other” hearing for June 1, 2015, a date which
       exceeds thirty days from the finding that R.H. is a CHINS. Appellant’s Appendix at 27. On June 1, 2015,
       the juvenile court held the first day of a three-day hearing on the DCS motion for a reasonable efforts
       exception. At the conclusion of the reasonable efforts hearing in August 2015, the juvenile court said it
       would set either a dispositional or a permanency hearing depending on its ruling on the DCS motion,
       implying no dispositional hearing had yet been held. The order granting DCS’s motion set a permanency
       hearing. And yet, the juvenile court’s order on the permanency hearing states:

       Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016                           Page 8 of 15
appeals was issued on August 17, 2015, well over thirty days after the CHINS

finding with no apparent dispositional hearing having been held. Nonetheless,

we look to the effect of the orders the juvenile court had entered prior to

Mother’s notice of appeal. The juvenile court had already determined that

R.H. was under the wardship of DCS and that she was to be placed in foster

care. The no reasonable efforts order, in addition to finding that DCS was not

required to make reasonable efforts to reunify Mother and R.H., suspended

Mother’s visitation with R.H. The permanency order changed the permanency

plan from reunification to adoption. In short, whether or not there is an order

denominated a “dispositional decree” in the record, the juvenile court’s orders

as a whole serve the purpose of a dispositional decree and further, effectively

end the relationship between Mother and R.H. and allow DCS to move




        The Court having considered the questions as to whether or not it should continue
        jurisdiction and whether the dispositional decree should be modified now finds that it is
        in the children’s [sic] best interest for the Court to continue jurisdiction. The Court
        further determines that the dispositional decree should not be modified.


Appellant’s App. at 109 (emphasis added).

Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016                             Page 9 of 15
       forward with termination proceedings.3 If Mother is not allowed to appeal this

       issue now, she may never be able to. See Smith, 635 N.E.2d at 1148 (holding

       that because the mother did not appeal the issue of whether she was entitled to

       court-appointed counsel in a CHINS proceeding until following termination

       proceedings, she had waived the issue). Thus, whether or not the court’s

       orders are technically a final judgment, they operate as one, and consequently,

       we will consider Mother’s argument.


                                II. Reasonable Efforts Exception
[12]   Indiana Code section 31-34-21-5.6 was enacted in response to the Adoption

       Assistance and Child Welfare Act, which authorizes federal subsidies to states

       for their operation of child welfare programs, conditioned on certain

       requirements. G.B. v. Dearborn Cnty. Div. of Family & Children, 754 N.E.2d 1027,

       1030 (Ind. Ct. App. 2001), trans. denied. One of the requirements for a state to

       be eligible for federal payments is that it have a plan which provides that




       3
         A petition to terminate the parent-child relationship must allege, among other things, that one of the
       following is true:

                (i) The child has been removed from the parent for at least six (6) months under a
                dispositional decree.
                (ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family
                preservation or reunification are not required, including a description of the court’s finding, the date
                of the finding, and the manner in which the finding was made.
                (iii) The child has been removed from the parent and has been under the supervision of a
                local office or probation department for at least fifteen (15) months of the most recent
                twenty-two (22) months, beginning with the date the child is removed from the home as a
                result of the child being allege to be a child in need of services or a delinquent child . . . .


       Ind. Code § 31-35-2-4(b)(2)(A) (emphasis added).

       Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016                                       Page 10 of 15
reasonable efforts to reunify a parent and child shall not be required if a court

has previously determined the parental rights of the parent to a sibling of the

child should be involuntarily terminated. 42 U.S.C. § 671(a)(15)(D)(iii).

Accordingly, Indiana Code section 31-34-21-5.6 provides that reasonable efforts

to reunify a child with the child’s parent are not required if the court finds the

“parental rights of a parent with respect to a biological or adoptive sibling of a

child who is a child in need of services have been involuntarily terminated by a

court order . . . .” Ind. Code § 31-34-21-5.6(b)(4). DCS alleged in its motion

for a reasonable efforts exception that Mother’s parental rights to two of R.H.’s

biological half-siblings had been involuntarily terminated, one in 2006 and one

in 2007.4 The juvenile court determined that, due to the prior terminations,

reasonable efforts to reunify Mother and R.H. were not required. Mother does

not dispute the CHINS adjudication was based on sufficient evidence, nor does

she dispute her history of parental rights’ terminations provides an adequate

basis for the juvenile court to find that reasonable reunification efforts were not

required. She argues, however, that the juvenile court’s order relieving DCS of

the obligation to provide reunification services unlawfully discriminated against




4
  The motion alleges that pursuant to Indiana Code sections 31-34-21-5.6(b)(4) and (5) reasonable efforts to
reunify R.H. with Mother should not be required. Section (b)(5) applies if the court finds the child is an
abandoned infant and finds, after a written report and recommendation from an appointed guardian ad litem
or court appointed special advocate, that reasonable efforts to locate the child’s parents or reunify the family
would not be in the child’s best interests. There is no evidence that R.H. is an abandoned child.

Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016                           Page 11 of 15
       her because she is entitled to reasonable accommodations for her undiagnosed

       disabilities in the CHINS proceedings.5


[13]   Mother bases her claim on the ADA and RA Section 504. Congress enacted

       the ADA to eliminate discrimination against individuals with disabilities and

       create causes of action for qualified people who have faced such discrimination.

       See 42 U.S.C. § 12101(b). The ADA provides, in pertinent part: “[N]o

       qualified individual with a disability shall, by reason of such disability, be excluded

       from participation in or be denied the benefits of the services, programs, or

       activities of a public entity, or be subjected to discrimination by any such

       entity.” 42 U.S.C. § 12132 (emphasis added). The ADA requires that the

       public entity make “reasonable modifications” to allow the qualified person to

       receive services or participate in programs or activities. 28 C.F.R. §

       35.130(b)(7). Similarly, RA Section 504 provides: “No otherwise qualified

       individual with a disability in the United States . . . shall, solely by reason of her or

       his disability, be excluded from participation in, be denied the benefits of, or be

       subjected to discrimination under any program or activity receiving Federal

       financial assistance . . . .” 29 U.S.C. § 794(a) (emphasis added). 6




       5
         DCS argues Mother has waived this claim for failure to raise it to the trial court. It does not appear Mother
       raised this particular issue to the trial court, but given our preference for deciding cases on their merits, Omni
       Ins. Grp. v. Poage, 966 N.E.2d 750, 753 (Ind. Ct. App. 2012), trans. denied, we will consider Mother’s argument
       notwithstanding any waiver.
       6
        The Rehabilitation Act is addressed to discrimination against individuals with disabilities in employment
       opportunities, see 29 U.S.C. § 701(b), and defines an individual with a disability as one who has a physical or
       mental impairment “which for such individual constitutes or results in a substantial impediment to
       employment” and who “can benefit in terms of an employment outcome from vocational rehabilitation

       Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016                             Page 12 of 15
[14]   It is true that “[o]nce [DCS] opts to provide services during the CHINS

       proceedings to assist parents in improving parental skills, the provision of those

       services must be in compliance with the ADA.” Stone v. Daviess Cnty. Div. of

       Children & Family Servs., 656 N.E.2d 824, 830 (Ind. Ct. App. 1995), trans. denied.

       Assuming Mother has a disability7 and assuming she was otherwise eligible to

       receive services,8 she would be entitled to reasonable accommodations in the

       provision of reunification services. In fact, Bush’s testimony supports the

       notion that Mother’s shortcomings were accommodated in these proceedings –

       her therapy appointments and visitations were scheduled back-to-back to

       improve her attendance, Bush helped her keep a calendar of appointments

       because she struggles with dates and times, and she was offered assistance in

       obtaining housing, a job, and SSI benefits, but declined. Notably, although

       Mother argues the failure to provide future services violates the ADA and RA

       Section 504, she does not argue the services she actually received failed to

       comply. She therefore essentially acknowledges the services DCS provided

       complied with the statutes. Mother was offered numerous services in her other



       services” provided under the act, 29 U.S.C. § 705(20). It is unclear how RA Section 504 applies to the
       provision of reunification services to Mother, and she has made no individualized argument with respect to
       the two statutes she claims have been violated in this case. Likewise, we will not distinguish the two statutes
       in our discussion.
       7
        Although Mother’s home-based therapist testified that she “felt like [Mother has] some intellectual
       disabilities as well as some mental health issues,” tr. at 49, there was no evidence that Mother has been
       officially diagnosed with a disability.
       8
         For purposes of the ADA, a “qualified individual with a disability” is an individual with a disability “who,
       with or without reasonable modifications to rules, policies, or practices, the removal of architectural,
       communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential
       eligibility requirements for the receipt of services or the participation in programs or activities provided by a
       public entity.” 42 U.S.C. § 12131(2) (emphasis added).

       Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016                             Page 13 of 15
       CHINS cases and in this case until the juvenile court granted the reasonable

       efforts exception, yet she remains unable to effectively parent.


[15]   “[T]he ADA was not intended ipso facto to re-write state substantive law.” Id.

       Moreover, “[e]very child is entitled to a minimum level of care regardless of the

       special needs or limited abilities of its parents. In the final analysis, the rights of

       the parents under the Fourteenth Amendment and the ADA must be

       subordinated to the protected rights of the children.” Id. at 831. Here, the

       juvenile court determined pursuant to state statute that DCS was not required

       to provide services to Mother due to her previous history of parental rights’

       terminations. See id. at 830 (holding there were no grounds for challenging in a

       termination proceeding the alleged failure to comply with the ADA in the

       provision of services because services are not required by the termination

       statute). Neither the DCS request nor the juvenile court’s finding pursuant to

       Indiana Code section 31-34-21-5.6 that services were not required was based on

       Mother’s disability and she was not subjected to discrimination in the

       application of the statute. Any individual with Mother’s history, whether under

       a disability or not, would be treated the same by a juvenile court applying the

       statute.



                                               Conclusion
[16]   Mother was not denied services or reasonable accommodations to participate in

       those services because of her disability and the juvenile court did not violate her



       Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016     Page 14 of 15
       rights by entering an order finding that DCS was not required to make

       reasonable reunification efforts.


[17]   Affirmed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016   Page 15 of 15
