MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any
                                                                                Jun 26 2020, 9:27 am
court except for the purpose of establishing
the defense of res judicata, collateral                                             CLERK
                                                                                Indiana Supreme Court
estoppel, or the law of the case.                                                  Court of Appeals
                                                                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
George Sistevaris                                        Curtis T. Hill, Jr.
Law Office of George Sistevaris                          Attorney General of Indiana
Fort Wayne, Indiana
                                                         Benjamin M. L. Jones
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Michaela M. McKinney,                                    June 26, 2020
Individually and as Personal                             Court of Appeals Case No.
Representative of the Estate of                          19A-CT-2873
Delilah M. McKinney,                                     Appeal from the Allen Superior
Appellants,                                              Court
                                                         The Honorable Craig J. Bobay,
        v.                                               Judge
                                                         Trial Court Cause No.
Indiana Department of                                    02D02-1903-CT-177
Child Services, et al.,
Appellees



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-2873 | June 26, 2020                       Page 1 of 6
[1]   Michaela McKinney (Mother) filed a complaint against the Department of

      Child Services (DCS) and individual DCS employees after her daughter,

      Delilah McKinney (Child), died while a ward of DCS. DCS filed a motion to

      dismiss the complaint, which the trial court converted into a summary

      judgment motion because DCS attached a court order as an exhibit. The trial

      court granted summary judgment in favor of DCS, and Mother now appeals,

      arguing that the trial court erred by treating the motion to dismiss as a summary

      judgment motion. Finding no reversible error, we affirm.


                                                     Facts
[2]   Mother adopted Child and raised her from infancy. Child was born with severe

      disabilities, lived at home with Mother, was bedridden, and required a nurse,

      who came to the home every day to help take care of her. In August 2016,

      Child developed an abrasion on her leg and the home nurse insisted that Child

      be brought to the emergency room for treatment. At some point, DCS became

      involved and filed a petition alleging Child to be a Child in Need of Services

      (CHINS).


[3]   During the CHINS case, DCS recommended that Child stay in the care and

      custody of Mother, but the trial court disagreed. The trial court ordered Child

      removed from Mother and placed in a facility and specifically stated that Child

      could not be moved without another court order. Child remained in the facility

      for seven months; throughout that time, Mother was significantly concerned

      that Child was not receiving the medical care she needed in the facility. Mother


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2873 | June 26, 2020   Page 2 of 6
      repeatedly raised her concerns with the Family Case Manager (FCM), but no

      changes were made. On March 28, 2017, Child died at the facility.


[4]   On March 27, 2019, Mother filed a complaint against DCS, seeking damages

      under the child wrongful death statute, and against individual DCS employees

      under 42 U.S.C. section 1983. She later amended the complaint to add a

      negligence claim.


[5]   On August 14, 2019, DCS moved to dismiss the complaint, attaching an order

      from Child’s CHINS proceeding as an exhibit. On September 16, 2019, Mother

      responded to the motion to dismiss. The trial court held a hearing on October

      9, 2019. At that hearing, the trial court noted that “it’s hard for courts to take

      judicial notice of CHINS and juvenile proceedings” because they are sealed and

      on a different system from the rest of the courts in Indiana. Tr. Vol. I p. 13.


[6]   On November 8, 2019, the trial court entered summary judgment in favor of

      DCS and the individual employees. The trial court noted that in its motion to

      dismiss, DCS relied substantially on the order from the CHINS case; as such,

      the trial court treated the motion as one for summary judgment. The trial court

      granted the motion, finding that DCS was entitled to quasi-judicial immunity,

      statutory immunity pursuant to Indiana Code section 31-25-2-2.5, and

      immunity under the Indiana Tort Claims Act, and that Mother failed to state a

      claim for relief against the individuals under section 1983 “because no personal

      involvement in the circumstances of the child’s death have been pleaded.”

      Appealed Order p. 7. Mother now appeals.


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2873 | June 26, 2020   Page 3 of 6
                                   Discussion and Decision
[7]   Mother’s only argument on appeal is that the trial court erred by treating DCS’s

      motion to dismiss as a motion for summary judgment. Indiana Trial Rule

      12(B) provides that if, on a motion to dismiss, matters outside the pleading are

      presented to and not excluded by the court, “the motion shall be treated as one

      for summary judgment . . . [and] all parties shall be given reasonable

      opportunity to present all material made pertinent to such a motion by Rule

      56.”


[8]   Mother first argues that materials of which a trial court may take judicial notice,

      including court orders, are not considered matters outside the pleading

      requiring that it be treated as a summary judgment motion. Moss v. Horizon

      Bank, N.A., 120 N.E.3d 560, 563 (Ind. Ct. App. 2019). Here, at the hearing, the

      trial court explained why it was unable to take judicial notice of the CHINS

      order, but we will assume solely for argument’s sake that the trial court erred by

      declining to take judicial notice of the CHINS order.


[9]   Mother maintains that she was not given notice that the trial court intended to

      treat DCS’s motion as one for summary judgment and was not given a

      reasonable opportunity to respond. There are three factors used to determine

      whether a party has shown that they were denied a reasonable opportunity to

      respond. First, we look to whether “the movant’s reliance on evidence outside

      the pleadings should have been so readily apparent that there is no question that

      the conversion is mandated by T.R. 12(B).” Azhar v. Town of Fishers, 744


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2873 | June 26, 2020   Page 4 of 6
       N.E.2d 947, 950-51 (Ind. Ct. App. 2001). Second, we examine whether “there

       was ample time after the filing of the motion for the nonmovant to move to

       exclude the evidence relied upon” or to submit its own materials in response.

       Id. at 951. Third, we consider whether “the nonmovant presented substantiated

       argument setting forth how she would have submitted specific controverted

       material factual issues to the trial court if [she] had been given the opportunity.”

       Id. (internal quotation marks omitted).


[10]   As to the first factor, we agree with Mother that initially, it was not obvious

       that, by attaching a court order to the motion to dismiss, DCS intended to rely

       on evidence outside the pleadings. But the trial court noted at the hearing that

       it would be problematic for it to take judicial notice of a CHINS order, so at

       that point, Mother should have been on notice of the issue. She could have

       objected and sought to exclude the exhibit, clarified the situation, and/or asked

       for more time to submit her own evidence; she took none of these actions. This

       dovetails with the second factor, which examines whether there was ample time

       after the filing of the motion for Mother to have sought to exclude the evidence

       or submit her own materials. Because Mother did not take any of those

       aforementioned actions at the hearing, we have no way of knowing how the

       trial court would have responded to a motion to exclude the evidence or a

       request for more time to submit her own evidence.


[11]   Mother has not attempted to address the third factor, which requires her to

       explain how she would have submitted specific controverted material factual

       issues to the trial court had she been given the opportunity. She has made no

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2873 | June 26, 2020   Page 5 of 6
       attempt to argue with any specificity1 what evidence she could have presented

       that would have created a genuine issue of material fact such that summary

       judgment would have been denied.


[12]   Having reviewed the three factors, we can only find that Mother has not met

       her burden of showing that she was denied a reasonable opportunity to respond

       to DCS’s motion as one for summary judgment. As a result, any error that the

       trial court may have made in converting the motion to dismiss into one for

       summary judgment was harmless, and we decline to reverse on this basis.


[13]   Mother makes no argument on appeal regarding the substance of her complaint

       or the substance of the trial court’s order. Therefore, she has waived any

       argument that summary judgment was erroneously granted in favor of DCS

       and the individual employees.


[14]   The judgment of the trial court is affirmed.


       Bradford, C.J., and Pyle, J., concurs.




       1
        The general statement in her reply brief that she “would certainly have presented affidavits and other
       evidence to oppose [] summary judgment” does not suffice. Reply Br. p. 7.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2873 | June 26, 2020                      Page 6 of 6
