                                                                           FILED
                                                                    Jun 18 2018, 9:18 am

                                                                           CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
R.O. (MOTHER)                                              Curtis T. Hill, Jr.
Nicole A. Zelin                                            Attorney General
Pritzke & Davis, LLP                                       Robert J. Henke
Greenfield, Indiana                                        Deputy Attorney General
ATTORNEY FOR APPELLANT                                     Indianapolis, Indiana
C.Q. (FATHER)
Linda Klain
Law Office of Linda B. Klain, LLC
Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: A.Q., K.Q.,                              June 18, 2018
and R.Q. (Minor Children),                                 Court of Appeals Case No.
                                                           47A05-1710-JC-2353
R.O. (Mother) and
C.Q. (Father),                                             Appeal from the Lawrence Circuit
                                                           Court
Appellants-Respondents,
                                                           The Honorable Andrea K.
        v.                                                 McCord, Judge
                                                           The Honorable John M. Plummer
Indiana Department of Child                                III, Referee
Services,                                                  Trial Court Cause Nos.
                                                           47C01-1501-JC-030
Appellee-Petitioner
                                                           47C01-1501-JC-031
                                                           47C01-1506-JC-239



Vaidik, Chief Judge.
Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018                     Page 1 of 16
                                            Case Summary
[1]   In children in need of services (CHINS) cases, the Department of Child

      Services (DCS) sometimes proposes changes to the trial court regarding the

      permanency plan for the children. At the start of the CHINS case, the

      permanency plan typically calls for reunification of the children with their

      parents. As the CHINS case proceeds, however, DCS may recommend a

      number of changes to the plan, including termination of the parents’ rights. We

      determine that when the trial court approves DCS’s proposal to change a

      permanency plan from reunification to termination in a CHINS case, the

      decision is generally not suitable for interlocutory appeal, particularly where, as

      here, reunification services are not terminated, because parents are unable to

      prove actual harm by the change in the permanency plan. Rather, the parents

      are only able to show the potential for future harm—termination of their

      parental rights.


[2]   In the matter before us, R.O. (“Mother”) and C.Q. (“Father”) bring their

      interlocutory appeal challenging the trial court’s order approving changes in the

      permanency plans in their children’s CHINS cases from reunification to

      termination. This Court’s motions panel accepted jurisdiction of the

      interlocutory appeal, and the parties fully briefed the case. Accordingly, we

      address the merits of the parents’ claims. Finding no error, we affirm.




      Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 2 of 16
                             Facts and Procedural History
[3]   Mother and Father are a non-traditional couple; Father is seventy-nine years

      old, and Mother is twenty-seven years old. They have a long history with DCS

      that dates back to 2006. At that time, DCS substantiated a claim of sexual

      misconduct with a minor against Father; Mother, who was fifteen years old at

      the time, was the victim. Since then, however, Mother and Father have

      continued their relationship and have three children together: A.Q., K.Q., and

      R.Q., born in 2010, 2012, and 2015, respectively.


[4]   In 2013, DCS substantiated claims of neglect of A.Q. and K.Q. against both

      Mother and Father due to a domestic-violence incident between the parents.

      Two months later, A.Q. and K.Q. both presented with injuries, and DCS again

      substantiated claims of neglect against Mother and Father. A.Q. had several

      physical injuries, some of which were over a year old, and K.Q. had a knot on

      the back of her head. Tr. Vol. VII pp. 82, 86. A.Q. and K.Q. were removed

      from the home and later adjudicated CHINS. Mother and Father engaged in

      services with DCS, and the children were ultimately returned to their care.


[5]   Less than two years later, DCS received an allegation that A.Q. had been

      physically abused. A.Q. “had several marks and bruises on her,” including a

      bruise about “1 ½ inches in diameter on her chin that was purple.” Id. at 7.

      DCS responded the same day and went to Mother and Father’s house to speak

      with them and A.Q. Upon seeing the “almost black” bruise on A.Q.’s chin and

      other bruises on her head, DCS told Mother and Father to take A.Q. to the


      Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 3 of 16
      hospital. Id. Photographs of the bruises were taken and sent to a doctor at

      Riley Hospital for Children. Based on the photographs and A.Q.’s medical

      records, the doctor concluded that A.Q. was injured as a result of physical

      abuse. The doctor told DCS, “To obtain an injury to that degree, there must

      have been a lot of force behind it. . . . . [A.Q.] was either propelled to the floor

      or someone hit her directly under the chin.” Id. at 8. The doctor also stated

      that the other injuries to A.Q.’s head were consistent with A.Q. being grabbed

      or slapped. Mother and Father both stated that they did not know how A.Q.

      was injured and that the bruise appeared after A.Q. came home from school.

      DCS immediately removed A.Q. and K.Q. from the home and placed them

      with Father’s granddaughter (“foster mother”). At the time of removal, Mother

      was pregnant with R.Q. On January 28, DCS filed CHINS petitions for both

      A.Q. and K.Q., and three months later, the children were adjudicated CHINS.


[6]   Meanwhile, the Lawrence County Sheriff’s Department was informed of A.Q.’s

      injuries and launched a criminal investigation. In March 2015, Mother was

      charged with Level 5 felony battery of a child less than fourteen years old. The

      criminal court issued a no-contact order for Mother and A.Q.


[7]   A dispositional hearing in the CHINS cases was held in June 2015. Six days

      later, Mother gave birth to R.Q. Because of the CHINS adjudications for A.Q.

      and K.Q., DCS removed R.Q. from Mother and Father’s care while still in the

      hospital. R.Q. was also placed with foster mother, and DCS filed a CHINS

      petition for R.Q. On September 8, the court entered its dispositional order in

      A.Q. and K.Q.’s CHINS cases. Mother and Father were ordered, in part, to

      Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 4 of 16
      maintain weekly contact with the Family Case Manager (FCM), keep all

      appointments with service providers, engage in home-based counseling, and

      have supervised visits with A.Q. and K.Q. The permanency plan for A.Q. and

      K.Q. was reunification with Mother and Father.


[8]   Around the same time as the dispositional order, A.Q. disclosed that Father

      had sexually abused her, and DCS substantiated the claim. K.Q. also made

      statements that Mother and Father had abused A.Q., but K.Q.’s disclosures had

      already been investigated by DCS. DCS moved to cease all parenting time and

      visitation for both parents and all three children. In January 2016, the court

      ordered that all parenting time and communication with A.Q. and her parents

      cease. However, the court ordered that K.Q. and R.Q. should continue to have

      supervised visitation with Mother and Father. It was also ordered that A.Q.

      and K.Q. undergo psychological evaluations to determine if they had been

      coached regarding the disclosures of abuse.


[9]   Dr. Linda McIntire conducted the psychological evaluations. She met with

      Mother and Father and met individually with A.Q. and K.Q. Based on her

      interactions with Mother and Father, Dr. McIntire believed that they had not

      made any progress in their therapy because they “would not own that they’d

      done anything wrong,” and she found their level of denial to be “pretty

      concerning.” Tr. Vol. IV pp. 187, 206. Regarding her time with A.Q. and

      K.Q., Dr. McIntire noted that, over the course of the multi-day evaluation,

      K.Q. refused to discuss Father at all but was willing to talk about Mother. Dr.

      McIntire stated, “[W]hen a child refuses to speak, that is a painful avoidance.

      Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 5 of 16
       That is not coaching.” Id. at 143. Dr. McIntire ultimately concluded that

       neither child had been coached regarding their disclosures of abuse. She

       explained that Mother and Father’s claim of coaching was a “manifestation of

       their pervasive denial of any wrong-doing, any problems, and any culpability

       relative to their children[.]” Appellants’ App. Vol. II p. 197.


[10]   Meanwhile, R.Q.’s CHINS case and Mother’s criminal case were moving

       forward. In January 2016, the court held a fact-finding hearing in R.Q.’s

       CHINS case. R.Q. was adjudicated a CHINS and a dispositional order was

       entered in April 2016. In part, the parents were ordered to participate in

       individual and couples therapy, contact the FCM at least once a week, and

       participate in home-based services. The permanency plan for R.Q. was

       reunification. As for Mother’s criminal case, she pled guilty in January 2016 to

       battery of a child less than fourteen years old. She was sentenced to three years

       of supervised probation and forty hours of community service. The criminal

       court also ordered her to cooperate fully with DCS.


[11]   In July 2016, DCS petitioned the court to approve changes in the permanency

       plans for all three children from reunification to termination. In its motion,

       DCS argued that the change was necessary because of the “lack of progress”

       Mother and Father had made with service providers and because of the “need




       Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 6 of 16
       for these children to live in a safe and permanent home.” Id. at 212. A multi-

       day permanency hearing began on October 31 and concluded on July 18, 2017.1


[12]   In December 2016, while the permanency hearing was still ongoing, the trial

       court ordered Mother and Father to submit to psychological evaluations. Dr.

       Bart Ferraro conducted both evaluations. Regarding Mother, Dr. Ferraro noted

       that she was “stress sensitive, psychologically immature . . . apt to repeat

       problems and be slow to learn from her experience.” Appellants’ App. Vol. III

       p. 3. He added that Mother “will demonstrate difficulty over time attuning,

       appreciating, and addressing satisfactorily, the needs and feelings of others.” Id.

       As for Father, Dr. Ferro found that Father, like Mother, “has an ability to rise

       to a higher level of functioning for a delimited period, but may, over time and

       unmonitored, gravitate to more deficient habits and patterns should external

       support and guidance be removed.” Id. at 16.


[13]   Over the course of the hearing, multiple DCS service providers testified. The

       providers stated that Mother and Father were some of the most compliant

       parents that they had every worked with, attending every appointment.

       However, most of the providers noted that Mother and Father had made no

       progress in services, especially individual therapy. FCM Christina Taylor said

       that Mother and Father had attended every therapy session but that they




       1
        The main reason for the lengthy permanency hearing was that six parties (DCS, Mother, Father, the foster
       mother, the Court Appointed Special Advocate, and the maternal grandmother), all represented by counsel,
       participated in the hearing.

       Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018                      Page 7 of 16
       refused to take any responsibility for the January 2015 injuries to A.Q. FCM

       Taylor further testified that the goals of the dispositional decree had not been

       met and that the reason for removal had not been remedied. She also explained

       that changes in the permanency plans would not result in DCS terminating

       services for Mother and Father.


[14]   George Freeman, who was the parents’ therapist in their 2013 CHINS case,

       was again appointed as Mother and Father’s therapist. He provided the parents

       with individual and couples counseling. Freeman stated that the parents would

       not admit that there was any kind of problem with their parenting style and that

       they were not at fault for any of the injuries. Tr. Vol. V pp. 92, 95. He opined

       that the parents were at a “stalemate” with DCS because the parents wouldn’t

       admit to any wrongdoing. Id. at 92. He added that Father blames the foster

       mother, DCS, and the service providers for his and Mother’s current situation.

       Id. at 118. Nevertheless, Freeman stated that he had no concerns with the

       children being placed back in the parents’ home. He admitted that he had made

       a similar recommendation in the 2013 CHINS case, that A.Q. and K.Q. were

       returned to Mother and Father’s care, and that the children were removed again

       in 2015 for the same reasons they were removed in 2013.


[15]   A.Q. and K.Q.’s therapist, Lowry Adams, testified that the children were

       thriving in their foster home. Adams noted that K.Q. had some regression in

       her behavior—throwing herself down on the floor screaming—because she did

       not want to go on visits to Mother and Father’s house or have nightly phone

       calls with them. She added that A.Q. was “terrified of her biological parents”

       Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 8 of 16
       but had been able to improve in therapy because she felt safe in her foster home

       and had not gone on visits with her parents. Tr. Vol. V p. 18. Adams said,

       “with all certainty,” that visitation with the parents should not increase. Tr.

       Vol. IV p. 235.


[16]   The visit supervisor, Andrew George, stated that K.Q. had verbally expressed

       to him that she did not want to go on visits with Mother and Father. Despite

       these expressions, George thought Mother and Father should progress from

       supervised to monitored visits with K.Q. and R.Q.


[17]   Father also testified at the hearing. He stated that he had “a lot of issues” with

       the foster mother and that he thought that “everything [was] pretty much [her]

       fault.” Tr. Vol. VI p. 71.


[18]   After the hearing concluded, the trial court issued its order approving DCS’s

       proposed changes to the permanency plans. Mother and Father each petitioned

       the court to certify its order for interlocutory appeal, and DCS did not respond

       to either petition. The trial court certified its order, and Mother and Father

       asked this Court to accept jurisdiction over their appeal. DCS did not respond

       to the motion. The Court’s motions panel granted the motion, and this

       interlocutory appeal ensues.



                                   Discussion and Decision
[19]   Mother and Father contend that the trial court’s order approving the changes to

       the permanency plans from reunification to termination was clearly erroneous.

       Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 9 of 16
       Before we address their argument, we first must address DCS’s argument that

       this appeal is “premature.” Appellee’s Br. p. 26.


[20]   DCS claims that the changes to the permanency plans have not caused the

       parents actual harm. It relies on our decision in In re K.F., 797 N.E.2d 310

       (Ind. Ct. App. 2003), to support its position. In K.F., the court issued an order

       approving DCS’s proposed change to the permanency plan from reunification

       to termination. The K.F. parents did not petition for interlocutory appeal but

       rather appealed the court’s order as a final judgment. We held, in part, that the

       change in a permanency plan from reunification to termination is not an

       appealable final judgment because parents “are not prejudiced by the

       permanency plan” because the change does not terminate parents’ rights and

       parents “may challenge the propriety of terminating their parental rights and

       hold [DCS] to the stricter burden of proof required in such cases.” Id. at 315.

       Despite the procedural differences in K.F. and the matter before us, we find

       DCS’s argument persuasive. For the same reasons articulated in K.F., we hold

       that an interlocutory appeal of a change in the permanency plan is generally

       premature. The change does not prejudice the parents because they still have a

       separate termination hearing, and the evidentiary burden on DCS to prove that

       termination is appropriate is higher than what DCS is required to prove in order

       to change the permanency plan from reunification to termination.


[21]   DCS, however, did not respond to Mother’s or Father’s request for the trial

       court to certify its order for interlocutory appeal. Nor did DCS respond to

       Mother and Father’s motion for this Court to accept jurisdiction of their appeal

       Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 10 of 16
       after the trial court certified its order. Instead, DCS raised its argument for the

       first time in its brief. Because we accepted jurisdiction over the appeal and the

       parties have fully briefed the issue, we address Mother’s and Father’s

       arguments. Mother and Father appealed separately, and, where possible, we

       have consolidated their arguments.


[22]   Permanency plans are part of the CHINS case, and decisions in CHINS cases

       are reviewed for clear error. In re S.K., 57 N.E.3d 878, 881-82 (Ind. Ct. App.

       2016). Here, the parties agree that a change in the permanency plan should also

       be reviewed for clear error. Father’s Br. p. 8; Mother’s Br. p. 18; Appellee’s Br.

       p. 27. We will neither reweigh the evidence nor judge the credibility of the

       witnesses. In re D.F., 83 N.E.3d 789, 796 (Ind. Ct. App. 2017). Rather, we

       consider only the evidence that supports the court’s determination and

       reasonable inference drawn therefrom. Id.


[23]   The parents argue that the evidence is insufficient to support the trial court’s

       order. They contend that the court’s finding that they are only in partial

       compliance with services is clearly erroneous and unsupported by the record.

       Mother and Father are correct that FCM Taylor stated, “They are the most

       compliant people I’ve met. They go to everything that they are supposed to go

       to.” Tr. Vol. V p. 248. But the full findings state:


               Mother is partially in compliance with the plan as follows:
               Mother has been participating in services including home based
               case management and therapy. Mother has not made the
               necessary progress in therapy and home based case work to
               maintain a viable permanency plan of reunification.

       Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 11 of 16
               Father is partially in compliance with the plan as follows: Father
               has been participating in services including home based case
               management and therapy. Father has not made the necessary
               progress in services to maintain a viable permanency plan of
               reunification.



       Appellants’ App. Vol. III p. 23. Throughout the four-day permanency hearing,

       FCM Taylor and therapist Freeman testified multiple times that Mother and

       Father were attending their service appointments, but the parents were not

       making progress with their individual therapy. Namely, Mother and Father

       refused to accept responsibility for the injuries A.Q. sustained in January 2015,

       and they continued to blame others for their current situation. Father even

       testified that “everything is pretty much [foster mother’s] fault.” Tr. Vol. VI p.

       71. The evidence is sufficient to support the trial court’s finding that Mother

       and Father were not progressing with services, therapy, and home-based

       services to maintain permanency plans of reunification.


[24]   The parents also contend that DCS did not provide reasonable services aimed at

       reunification. They argue that services provided to A.Q. were inadequate to

       support reunification because they had not seen her since March 2015 (Mother)

       and January 2016 (Father). DCS provided Mother and Father with individual

       therapy, couples therapy, home-based services, and supervised visits. A.Q. was

       given individual therapy to address her fears surrounding reunification. Again,

       the parents ignore the fact that they made no progress in therapy to address

       their actions, which is why the no-contact order was not lifted.


       Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 12 of 16
[25]   Furthermore, the parents claim that DCS replaced therapist Freeman and visit

       supervisor George after each testified that they had no issue with Mother and

       Father progressing to monitored visits and reuniting with the children. They

       contend that this is proof that DCS did not provide the necessary services for

       reunification. We agree that, as an isolated incident, the replacement of service

       providers who recommend reunification would be alarming. However, when

       taken in the context of the case as a whole, we do not agree with the parents’

       position. At the time Freeman and George were replaced, the case had been

       ongoing for over two years, and Freeman himself testified that Mother and

       Father were not willing to take accountability for what happened to A.Q. in

       January 2015. Furthermore, DCS did not just replace Freeman and George; it

       also replaced therapist Adams who recommended “with all certainty” that

       Mother and Father not be given more visitation time. The evidence is sufficient

       to show that DCS was providing necessary services for reunification.


[26]   Additionally, Father raises a separate, distinct argument: his constitutional

       rights were violated by keeping A.Q. from him and Mother. In support of his

       argument, Father cites to our holding in a termination-of-parental-rights case,

       Lang v. Starke County Office of Family and Children, 861 N.E.2d 366 (Ind. Ct. App.

       2007), trans. denied. But in Lang, we stated, “A parent has a constitutional right

       to raise his or her children, but this right is not absolute and must be

       subordinated to the children’s interests when the children’s emotional and

       physical development is threatened.” Id. at 371. Father contends that his due-

       process rights were violated and that he “did everything DCS and the Court


       Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 13 of 16
       asked him to. And yet, neither Parent was ever even offered an opportunity to

       see the child.” Father’s Br. p. 12. But Father was given a fair, multi-day

       hearing to address reunification with A.Q. During that hearing it was

       repeatedly stated that Father and Mother were unwilling to take any

       responsibility for A.Q.’s January 2015 injuries—the reason why the children

       were removed from the home. Father also contends that the trial court’s no-

       contact order was not narrowly tailored because “Father was not accused of

       battery, yet he was given the same treatment as Mother who was charged and

       convicted of a crime.” Id. Father fails to mention that the reason the trial court

       entered a no-contact order for both parents was A.Q.’s substantiated claim of

       sexual abuse by Father. Father would not discuss this claim with therapist

       Freeman other than to say that he did not do it and that A.Q. was coached into

       making that admission. Father has not convinced us that his constitutional

       rights were violated.


[27]   Mother also makes a separate, distinct argument: the court’s order was clearly

       erroneous because it did not include a concurrent plan for reunification.

       “Concurrent planning . . . requires the identification of two (2) permanency

       plan goals and simultaneous reasonable efforts toward both goals with

       knowledge of all participants.” Ind. Code § 31-9-2-22.1(b). Mother contends

       that DCS should have proposed a concurrent permanency plan that included

       reunification because she and Father were “active” participants in services and

       progressed in services. Mother’s Br. p. 27. She also claims that the concurrent

       plan was in the best interests of the children given “the length of time it would


       Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 14 of 16
       take to proceed through a termination proceeding[.]” Id. Mother is correct that

       Indiana Code section 31-9-2-22.1 permits a trial court to adopt a concurrent

       permanency plan, but the statute does not mandate that DCS propose a

       concurrent permanency plan or that the court adopt a concurrent permanency

       plan. Additionally, the changes to the permanency plans do not terminate

       reunification services for Mother and Father. Regardless of the time it takes for

       the termination proceeding to be completed, Mother and Father are able to

       participate in services and make the necessary progress to regain custody of

       their children. See Appellants’ App. Vol. III pp. 22-25 (the trial court’s order

       approving the permanency changes does not order DCS to stop reunification

       services); Tr. Vol. V p. 146 (FMC Taylor testifying that changes to the

       permanency plans would not stop DCS from offering the parents or children

       services aimed at reunification). Furthermore, when the court issued its order

       in November 2017, this case had been ongoing for almost three years. During

       that time, Mother and Father had not made any progress in their individual

       therapy. Accordingly, the court’s decision to adopt a singular plan for

       permanency was not clearly erroneous.


[28]   In summary, there was sufficient evidence presented over the four-day

       permanency hearing to support the trial court’s order approving the proposed

       changes to the permanency plans from reunification to termination. The trial

       court’s order was not clearly erroneous. Furthermore, we reiterate that a

       change in the permanency plan from reunification to termination is generally

       not suitable for interlocutory review, particularly where, as here, DCS and the


       Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 15 of 16
       court continue reunification services, because parents cannot show actual harm

       from the change; they can only show the potential for future harm.


[29]   Affirmed.


       Pyle, J., and Barnes, Sr. J., concur.




       Court of Appeals of Indiana | Opinion 47A05-1710-JC-2353 | June 18, 2018   Page 16 of 16
