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.

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