                                                                         FILED
                                                                    Jun 19 2019, 8:54 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Erin L. Berger                                              Curtis T. Hill, Jr.
Evansville, Indiana                                         Attorney General
                                                            Robert J. Henke
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: M.W., a Child                             June 19, 2019
Alleged to be in Need of                                    Court of Appeals Case No.
Services,                                                   18A-JC-2452
                                                            Appeal from the
S.R. (Mother),                                              Vanderburgh Superior Court
                                                            The Honorable
Appellant-Respondent,
                                                            Brett J. Niemeier, Judge
        v.                                                  The Honorable
                                                            Renee A. Ferguson, Magistrate
Indiana Department of Child                                 Trial Court Cause No.
Services,                                                   82D04-1807-JC-1414
Appellee-Petitioner



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 18A-JC-2452 | June 19, 2019                            Page 1 of 7
                                            Case Summary
[1]   S.R. (“Mother”) appeals the trial court’s placement of M.W. (“Child”) after it

      found that Child is a child in need of services (CHINS). Because Child has

      since been placed with Mother and the CHINS case closed, we dismiss this

      appeal as moot.



                             Facts and Procedural History
[2]   Child was born to Mother and Me.W. (“Father”) (collectively, “Parents”) in

      2003. At some point Parents split up and Father was granted custody of Child.

      In July 2018, Father and fifteen-year-old Child lived in Evansville with a

      woman named A.W., who had been named a legal custodian of Child, and

      Mother lived in Chicago. On July 23, the Department of Child Services (DCS)

      removed Child and filed a CHINS petition alleging that Father was abusing

      substances and told DCS workers that he no longer wants Child in his house.

      At the initial hearing, Father denied the allegations. Mother appeared by phone

      and asked if she could come get Child. Judge Pro Tem Jillian Reed said that to

      do that Mother would need to file a petition to modify custody or would need

      to undergo an investigation under the Interstate Compact on the Placement of

      Children (ICPC), which provides a way to send children to new homes across

      state lines and allows the receiving state to investigate whether a child can be

      placed in a proposed home. See Bester v. Lake Cty. Office of Family and Children,

      839 N.E.2d 143, 145 n.2 (Ind. 2005). After Judge Reed explained Mother’s

      options, the following colloquy occurred:

      Court of Appeals of Indiana | Opinion 18A-JC-2452 | June 19, 2019          Page 2 of 7
              THE COURT:                 Do you have any objection to [Child] being
                                         found to be a child in need of services?


              [MOTHER]:                  Yeah, [Child] still needs (indiscernible). And
                                         I think that [Child] shouldn’t be abused in
                                         any kinda way or form. [Child is] a little kid.


              THE COURT:                 So you don’t –


              [MOTHER]:                  Yeah, [Child] will need services.


              THE COURT:                 So you don’t have any objection to [Child]
                                         receiving services and being removed from
                                         [Father]?


              [MOTHER]:                  (Indiscernible) immediately. (Indiscernible).


      Tr. p. 16. Judge Reed set a fact-finding hearing for August 21 and told Mother

      that “because you’re the non-offending parent you are not ordered to appear. It

      is discretionary for you to be there.” Id. at 17. Mother did not appear for the

      fact-finding hearing, and Magistrate Renee A. Ferguson heard evidence against

      Father and adjudicated Child a CHINS.


[3]   On September 18, Magistrate Ferguson held a dispositional hearing, and

      Mother appeared by phone. She was also represented by counsel, who asked

      the court “to reconsider the finding of probable cause as to Mother, dismiss the

      CHINS case, and place [Child] in Illinois with Mother.” Id. at 24. Mother’s

      attorney argued that there is “current case law in Indiana that says that an

      ICPC’s not necessary when we’re dealing with a biological parent, which is the

      Court of Appeals of Indiana | Opinion 18A-JC-2452 | June 19, 2019                    Page 3 of 7
case that we have here.” Id. at 24-25. Magistrate Ferguson asked DCS if there

were any allegations against Mother in the CHINS petition, and DCS

responded, “No.” Id. at 25. Magistrate Ferguson denied placement of Child

with Mother without further investigation, specifically, undergoing the ICPC

process, explaining:


        The Court is well aware of the Appellate Court’s position on an
        ICPC and respectfully disagrees with their position. If you read
        31-28-4-1, the enactment of the compact, it – in article 1 purpose
        and policy – clearly states that what the purpose of this is. It
        states clearly – you know, it defines sending agency, receiving
        agency. Placement it clearly defines. Conditions of placement,
        article 3, subsection d, “A child shall not be sent, brought, or
        cause to be sent or brought into a receiving State until
        appropriate public authorities in the receiving State shall notify
        the sending agency in writing to the effect that the proposed
        placement does not appear to be contrary to the interest of the
        child.”


        And we go on further in article 10 of ICPC construction and
        severability, “provisions of this compact shall be liberally
        construed to effect the compact’s purposes.” And as previously
        stated, the purpose of the compact is not just to have a child go to
        an approved party or biological party, but also to effect the best
        interest of the child. The Court has no way of knowing what the
        best interests of a child are given that it does not know the
        background of the person receiving the child. So therefore I will
        order that the Vanderburgh County Department of Child
        Services conduct an interstate placement of compact [sic] review
        with the Mother in the State of Illinois.


Id. at 25-26. Magistrate Ferguson awarded wardship of Child to DCS and

placed Child in an independent-living program. Vanderburgh Superior Court

Court of Appeals of Indiana | Opinion 18A-JC-2452 | June 19, 2019            Page 4 of 7
      Judge Brett J. Niemeier then issued a written order confirming Magistrate

      Ferguson’s decision.


[4]   In October 2018, Mother filed her appeal. In March 2019, after Mother filed

      her appellate brief, DCS filed with the trial court a motion to terminate its

      wardship of Child, explaining that Mother had completed the ICPC process

      and that Child was placed with her. The trial court granted the motion,

      ordering DCS’s wardship of Child terminated and the CHINS case closed. See

      Order on Wardship Termination, Cause No. 82D04-1807-JC-1414 (Mar. 5,

      2019).



                                  Discussion and Decision
[5]   On appeal, Mother asks us to do two things: (1) set aside the CHINS

      adjudication and (2) place Child with her. As to the first request, Mother is

      precluded from asserting that there is insufficient evidence to support the

      CHINS adjudication when, at the initial hearing, she agreed that Child “will

      need services.” Tr. p. 16; see Wabash Grain, Inc. v. Smith, 700 N.E.2d 234, 237

      (Ind. Ct. App. 1998) (“judicial estoppel prevents a party from asserting a

      position in a legal proceeding inconsistent with one previously asserted”), trans.

      denied. Moreover, without Child being adjudicated a CHINS, the trial court

      could not order the placement Mother sought. That is, Mother wanted Child to

      be placed with her, but the trial court could not have done so without first

      adjudicating Child a CHINS.



      Court of Appeals of Indiana | Opinion 18A-JC-2452 | June 19, 2019          Page 5 of 7
[6]   Mother’s real argument is that the “trial court erred in requiring an approved

      ICPC prior to placing [Child] with [Mother].” Appellant’s Br. p. 18. DCS

      agrees. See Appellee’s Br. p. 22. We do as well. This Court has made clear

      that the ICPC does not apply to placement with an out-of-state parent. In re

      B.L.P., 91 N.E.3d 625, 630 (Ind. Ct. App. 2018) (“we hold as plainly and

      unambiguously as possible: unless and until the statute is amended, the ICPC

      does not apply to placement with an out-of-state parent.”); see also In re D.B., 43

      N.E.3d 599, 604 (Ind. Ct. App. 2015), trans. denied. Here, Magistrate Ferguson

      said, “The Court is well aware of the Appellate Court’s position on an ICPC

      and respectfully disagrees with their position.” Tr. p. 25. Then, Judge

      Niemeier issued an order signing off on her decision.


[7]   The decisions of this Court are binding upon trial courts. Heber v. Indianapolis

      Metro. Police Dept., 58 N.E.3d 995, 997 (Ind. Ct. App. 2016). We caution

      Magistrate Ferguson and Judge Niemeier that the Indiana Code of Judicial

      Conduct requires judicial officers to uphold the law. See Ind. Judicial Conduct

      Rule 1.1. Vertical stare decisis requires judicial officers to follow this Court’s

      opinions despite their own personal opinions otherwise. See In re C.F., 911

      N.E.2d 657, 658 (Ind. Ct. App. 2009) (“vertical stare decisis is an obligation to

      follow the decisions of superior tribunals”).


[8]   That said, Mother completed the ICPC, Child is placed with her, and the

      CHINS case is closed. Since Mother has already gotten what she asks for on

      appeal, this Court cannot provide effective relief upon the issue. See Matter of

      Lawrance, 579 N.E.2d 32, 37 (Ind. 1991) (“a case is deemed moot when no

      Court of Appeals of Indiana | Opinion 18A-JC-2452 | June 19, 2019           Page 6 of 7
      effective relief can be rendered as to the parties before the court”). Therefore,

      Mother’s appeal is dismissed as moot.


[9]   Dismissed.


      Kirsch, J., and Altice, J., concur.




      Court of Appeals of Indiana | Opinion 18A-JC-2452 | June 19, 2019          Page 7 of 7
