In the Matter of the Tr.S. and N.S. (Minor Children) and To.S. (Mother) To.S. (Mother) v. The Indiana Department of Child Services
2016 Ind. App. LEXIS 411
Ind. Ct. App.2016Background
- Mother and Father arrested for heroin possession in Nov 2014; DCS removed two youngest children (Tr.S., N.S.) on Dec 1, 2014 and filed CHINS petitions. Mother admitted routine illegal drug use and children were adjudicated CHINS.
- Aug 10, 2015 dispositional order required reunification services (therapy, substance assessment, random UA, supervised visitation).
- After reports that visits caused adverse reactions in the children, DCS moved to suspend visitation; the court suspended visitation in Dec 2015.
- At a Feb 11, 2016 permanency hearing the court found Mother noncompliant, suspended reunification services (except random screens), directed DCS to initiate termination proceedings, and changed the permanency plan from reunification to termination/adoption; a finalization date was set and a review hearing scheduled for Aug 11, 2016.
- Mother appealed the Feb 11, 2016 order; DCS moved to dismiss for lack of appellate jurisdiction.
Issues
| Issue | Mother’s Argument | DCS’s Argument | Held |
|---|---|---|---|
| Whether the Feb 11, 2016 permanency-order modifying the plan is a final, appealable judgment | The order effectively denies reunification services and should be treated as a final judgment allowing direct appeal because denial could be impossible to review after a later termination | The order is interlocutory (not final); appellate jurisdiction is limited to final judgments unless interlocutory certification is sought under Rule 14(B) | Not final or appealable; appeal dismissed for lack of subject-matter jurisdiction |
| Whether parents are excused from pursuing interlocutory certification because it is impracticable or unfair | Mother argued interlocutory certification is an unrealistic burden and would unfairly prevent immediate review of service denials | DCS and court said Rule 14(B) provides the proper route; counsel should seek certification if needed and the 30-day filing framework is sufficient | Court rejected Mother’s claim; interlocutory certification is the proper remedy and she failed to follow it |
Key Cases Cited
- In re D.W., 52 N.E.3d 839 (Ind. Ct. App. 2016) (permanency-order denials are not final appealable judgments)
- In re K.F., 797 N.E.2d 310 (Ind. Ct. App. 2003) (permanency plan ordering termination is not final)
- In re J.W., Jr., 27 N.E.3d 1185 (Ind. Ct. App. 2015) (failure to provide services is not a required element to challenge termination)
- Moore v. State, 949 N.E.2d 343 (Ind. 2011) (courts apply law as written; changes to statutes/rules are for legislature)
- T.B. v. Indiana Dep’t of Child Servs., 971 N.E.2d 104 (Ind. Ct. App. 2012) (court will not rewrite clear statutory language)