MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jul 07 2017, 7:08 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Mark K. Phillips                                          Curtis T. Hill, Jr.
Phillips Law, P.C.                                        Attorney General of Indiana
Boonville, Indiana
                                                          Abigail R. Recker
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of R.S. (Minor                              July 7, 2017
Child) Child in Need of Services,                         Court of Appeals Case No.
and D.S. (Mother),                                        87A05-1609-JC-2280
Appellant-Respondent,                                     Appeal from the Warrick Circuit
                                                          Court
        v.                                                The Honorable Greg Granger,
                                                          Judge
The Indiana Department of                                 Trial Court Cause No.
Child Services,                                           87C01-1507-JC-126
Appellee-Petitioner.




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 87A05-1609-JC-2280 | July 7, 2017              Page 1 of 8
                                           Case Summary
[1]   D.S. (“Mother”) and J.S. (“Father”) (collectively, “Parents”) appeal the denial

      of their Indiana Trial Rule 60(B)(8) motion for relief from judgment. They

      present the sole issue of whether the trial court abused its discretion by denying

      the request for clarification of a Child in Need of Services (“CHINS”) order to

      provide that it did not include a finding of parental neglect. We affirm.



                            Facts and Procedural History
[2]   On May 5, 2010, Parents adopted R.S., who was then eleven years old. On

      June 23, 2015, the Indiana Department of Child Services (“DCS”) initiated an

      investigation after receiving a report that R.S. and Mother had been engaged in

      a physical altercation. It was reported that R.S. was found to be in possession

      of an R-rated movie in violation of house rules; Mother verbally confronted

      R.S. and pushed against her cheek; R.S. slapped or hit Mother in the arm more

      than once; and law enforcement was contacted, leading to DCS intervention.

      As of the date of the initial intake report, R.S. had been placed by Mother and

      Father into a private respite care foster home. Family Case Manager Briana

      Hofman (“Hofman”) interviewed Mother, who indicated that she and Father

      were uncertain as to whether R.S. would be allowed to return home. In her

      report, Hofman documented her advisement that “if [R.S.] is not allowed back

      into their home and they have not found suitable placement for [R.S.], this is

      considered abandonment.” (App. Vol. III, pg. 11.)



      Court of Appeals of Indiana | Memorandum Decision 87A05-1609-JC-2280 | July 7, 2017   Page 2 of 8
[3]   On June 26, 2015, Mother contacted Hofman to report that R.S. could not

      remain at the respite care home and Parents were not allowing R.S. to return to

      their home. Hofman reportedly discussed the possibility of services, but Mother

      “was not interested.” (App. Vol. III, pg. 11.) On June 30, 2015, Hofman met

      with both Mother and Father. Hofman documented her identification of the

      following possible services: “crisis intervention, home-based casework,

      homebuilders, in-home therapy, mentors, parent aids, post-adoptive respite

      care, and post-adoptive services,” but additionally reported that “[Parents] are

      declining all services at this time” and had “signed a paper confirming that they

      are not accepting any of the offered services at this time.” (App. Vol. III, pg.

      13.) On July 2, 2015, Mother again contacted Hofman regarding a need for

      placement for R.S. Per Hofman’s intake report, Mother was again offered

      services and again declined. DCS took custody of R.S.


[4]   On July 7, 2015, DCS filed a request for court authorization of a petition

      alleging R.S. to be a CHINS. On the same day, Parents made certain

      evidentiary admissions and the filing of a CHINS petition was authorized.

      Additional parental admissions were entered on July 15, 2015. Parents

      obtained counsel and moved for amendment of the CHINS petition. On

      September 30, 2015, the CHINS court granted the motion for amendment, such

      that the word “neglect” was struck from Section 5(a) of the petition and the

      section thereafter provided in relevant part: “the child’s physical or mental

      condition is seriously impaired or seriously endangered as a result of the

      inability or refusal of the child’s parent …” (App. Vol. II, pg. 15.) Also, in


      Court of Appeals of Indiana | Memorandum Decision 87A05-1609-JC-2280 | July 7, 2017   Page 3 of 8
      Section 6(d), the word “refused” was replaced with the word “declined,” with

      the section thereafter providing in relevant part: “The parents declined to allow

      the child to return to their home, and were unable to provide an alternative

      placement for the child.” (App. Vol. II, pg. 15.)


[5]   The CHINS order of September 30, 2015 recited that Parents had admitted that

      R.S. was a CHINS as defined by Indiana Code Section 31-34-1-1,1 and had

      admitted material facts including: DCS received a report regarding R.S. on June

      23, 2015; DCS learned that Parents were no longer willing to care for their

      child; R.S. had been informally placed in a foster home; and Parents declined to

      allow R.S. to return to their home after the foster mother indicated she was not

      able to continue caring for R.S. Concluding that “an admission of the

      allegations of the petition [had] been entered,” the court adjudicated R.S. a

      CHINS. (App. Vol. II, pg. 16.) Parents did not appeal the CHINS

      adjudication.


[6]   In October of 2015, DCS issued to Mother, who is employed by a child care

      agency, a “Notice of Intent to Substantiate Allegations of Child Abuse or

      Neglect by a Child Care Worker or Licensed Resource Parent.” (App. Vol. III,

      pg. 25.) The Notice advised that, “once the assessment is approved,” Mother

      would be identified as a perpetrator of neglect on the Child Protection Index.




      1
        Three basic elements are required: that the parent’s actions or inactions have seriously endangered the child,
      that the child’s needs are unmet, and that those needs are unlikely to be met without State coercion. In re
      S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).

      Court of Appeals of Indiana | Memorandum Decision 87A05-1609-JC-2280 | July 7, 2017                 Page 4 of 8
      (App. Vol. III, pg. 25.) Mother was advised that she had the right to participate

      in an administrative review of the decision with a DCS administrator not

      involved in making the recommendation to substantiate. Mother participated

      in administrative proceedings and requested an administrative appeal hearing.


[7]   On December 15, 2015, DCS filed its Notice of Case Disposition and Motion to

      Dismiss; Mother filed a response. The parties disputed whether there had been

      a specific finding of neglect in the Order of Adjudication, upon which the

      substantiation of neglect could be predicated. On March 24, 2016, the

      Administrative Law Judge (“ALJ”) granted summary judgment to DCS.

      Mother filed a petition for judicial review of that decision, but did not perfect

      the appeal due to failure to timely file the record of administrative proceedings.


[8]   On June 16, 2016, Parents filed a Motion for Relief from Judgment pursuant to

      Trial Rule 60(B)(8). They asserted that the ALJ interpretation of the Order of

      Adjudication to include a determination of neglect had caused hardship,

      prejudice, and injustice and requested that the court “clarify its order of

      September 30, 2015, to correct the erroneous interpretation by [DCS]” and

      prevent Mother’s inclusion on a state registry so that her employment was not

      negatively impacted. (App. Vol. II, pgs. 37-38.) The trial court conducted a

      hearing on August 23, 2016 and, on August 30, 2016, denied the motion for

      relief. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 87A05-1609-JC-2280 | July 7, 2017   Page 5 of 8
                                  Discussion and Decision
[9]    Trial Rule 60(B)(8) provides in relevant part:

               On motion and upon such terms as are just the court may relieve
               a party or his legal representative from a judgment, including a
               judgment by default, for the following reasons: …


               (8) any reason justifying relief from the operation of the
               judgment, other than those reasons set forth in sub-paragraphs
               (1), (2), (3), and (4). . . . A movant filing a motion for reasons (1),
               (2), (3), (4), and (8) must allege a meritorious claim or defense.


       “The trial court’s residual powers under subsection (8) may only be invoked

       upon a showing of exceptional circumstances justifying extraordinary relief.”

       Baker & Daniels, LLP v. Coachmen Indus., 924 N.E.2d 130, 140 (Ind. Ct. App.

       2010), trans. denied. The circumstances must be other than those enumerated in

       the preceding subsections, such as mistake, surprise, or excusable neglect. Id.

       In addition to showing sufficient grounds for relief under Trial Rule 60(B), the

       movant must also make a prima facie showing of a meritorious claim. Id. at

       141. The decision of whether to grant or deny the motion is left to the equitable

       discretion of the trial court, and is reviewable only for an abuse of discretion.

       Gipson v. Gipson, 644 N.E.2d 876, 877 (Ind. 1994).


[10]   Parents’ motion for relief from judgment asserted that they had suffered

       “tremendous hardship, prejudice and injustice” stemming from the

       administrative substantiation of neglect even though their CHINS admissions

       did not employ the words “neglect” or “refuse.” (App. Vol. II, pg. 32.) At the

       Court of Appeals of Indiana | Memorandum Decision 87A05-1609-JC-2280 | July 7, 2017   Page 6 of 8
       hearing on the motion for relief, Parents did not present testimony or other

       evidence; rather, argument of counsel was heard. Parents’ counsel requested

       that the trial court “correct obvious error” in the CHINS Order of Adjudication

       to reflect that the adjudication was based not upon neglect but rather upon R.S.

       presenting a danger to herself or others, consistent with Indiana Code Section

       31-34-1-6. (Tr. at 28.) Counsel urged clarification of an order that had been

       “completely misinterpreted and then misused.” (Tr. at 28.) The trial court’s

       order of August 30, 2016 denying Trial Rule 60(B)(8) relief included the

       language: “This Court’s Order on Adjudication September 30, 2015 found that

       RS was a CHINS pursuant to IC 31-34-1-1 as a result of admissions made by

       the parents.” (App. Vol. II, pg. 14.)


[11]   On appeal, Parents argue that they did not intend to admit to conduct

       amounting to statutory neglect and that the evidence more appropriately

       suggests the child’s conduct rather than parental conduct precipitated removal.

       Parents contend that DCS should have considered removal on the basis of

       Indiana Code Section 31-34-1-6, providing that a child is a child in need of

       services if “before the child becomes eighteen (18) years of age: (1) the child

       substantially endangers the child’s own health or the health of another

       individual; and (2) the child needs care, treatment, or rehabilitation that: (A) the

       child is not receiving; and (B) is unlikely to be provided or accepted without the

       coercive intervention of the court.” They do not provide a citation to authority

       by which the CHINS court could order DCS to draft its petition on one

       statutory basis as opposed to another.


       Court of Appeals of Indiana | Memorandum Decision 87A05-1609-JC-2280 | July 7, 2017   Page 7 of 8
[12]   In short, Parents do not deny that they advised DCS that they were no longer

       providing a home for R.S. and lacked alternative living arrangements for her, or

       that they asked DCS to take custody of R.S. Parents have not challenged the

       outcome of the CHINS Order of Adjudication – R.S. spent the remainder of her

       minority years outside the parental home, the State fulfilled the role of provider,

       and the CHINS court issued a child support order to Parents for a zero-dollar

       amount. Parents seek, under a trial rule intended to operate in extraordinary

       circumstances where the party also asserts a meritorious defense, not to have

       the Order of Adjudication set aside, but to have the language amended such

       that a different result would likely ensue in administrative proceedings. A

       collateral attack on an underlying judgment – not appealed – and a collateral

       attack on related administrative proceedings – not properly appealed – is not

       addressable by a Trial Rule 60(B)(8) motion. See Gipson (recognizing that

       appellate courts will not permit the bringing of a Trial Rule 60(B)(8) motion as

       a substitute for a direct appeal).



                                                Conclusion
[13]   Parents have not demonstrated that the trial court abused its discretion in

       denying the Trial Rule 60(B)(8) motion for relief from judgment.


[14]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 87A05-1609-JC-2280 | July 7, 2017   Page 8 of 8
