In the Matter of J.F. (Minor Child), and L.F. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION ON REHEARING FILED Pursuant to Ind. Appellate Rule 65(D), Jul 08 2016, 8:57 am

this Memorandum Decision shall not be CLERK Indiana Supreme Court regarded as precedent or cited before any Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Trenna S. Parker Gregory F. Zoeller Noblesville, Indiana Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of J.F. (Minor July 8, 2016 Child), Court of Appeals Case No. 29A02-1508-JC-1306 And Appeal from the Hamilton Circuit L.F. (Mother), Court Appellant-Respondent, The Honorable Paul A. Felix, Judge v. Trial Court Cause No. 29C01-1502-JC-196 The Indiana Department of Child Services, Appellee-Petitioner.

Riley, Judge. Court of Appeals of Indiana | Memorandum Decision on Rehearing 29A02-1508-JC-1306 | July 8, 2016 Page 1 of 5

[1] In a memorandum decision, our court concluded that there was sufficient

evidence to support the trial court’s adjudication of J.F. (Child) as a Child in

Need of Services (CHINS). In re J.F., No. 29A02-1508-JC-1306, 2016 WL

1064602, at *7 (Ind. Ct. App. Mar. 17, 2016). Appellant-Respondent, L.F.

(Mother), has filed a petition for rehearing, asserting that this court failed to

address the matter of probable cause as raised in her appellate brief. We now

grant rehearing for the limited purpose of addressing Mother’s claim that the

trial court erred in finding that there was probable cause to authorize the filing

of a CHINS petition. See Ind. Code § 31-34-9-2(2) (requiring a juvenile court to

[a]uthorize the filing of a petition if the court finds probable cause to believe

that the child is a [CHINS]”). [2] Although a detailed recitation of the facts is set forth in our original decision,

we reiterate that on February 16, 2015, the Indiana Department of Child

Services (DCS) recommended the filing of a CHINS petition based on the

ongoing domestic violence between Mother and the Child’s father; concerns of

the parents’ alcohol impairment and substance abuse; and concerns of Mother’s

mental health and its impact on her ability to care for the Child. In addition,

Mother had refused to cooperate with DCS’ attempt to investigate the

allegations raised regarding the Child’s welfare. Pursuant to Indiana Code

section 31-34-9-2, on February 23, 2015, the trial court conducted a hearing to

determine if DCS had presented probable cause to file a CHINS petition.

Despite receiving notice and her appearance outside the courtroom prior to the

hearing, Mother did not stay for the hearing. The trial court proceeded in her

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absence and determined that there was sufficient probable cause to warrant the

filing of a CHINS petition. On March 4, 2015, the trial court filed its Order on

probable cause. Thereafter, Mother did not seek to appeal the Order. [3] In accordance with the statutory requirements for CHINS proceedings, the trial

court subsequently conducted an initial hearing and, after the Child was

removed from Mother’s custody, a detention hearing. On April 27, 2015, and

May 28, 2015, the trial court conducted a fact-finding hearing, and on June 30,

2015, the trial court adjudicated the Child to be a CHINS. A dispositional

hearing was held on July 27, 2015, and on August 15, 2015, the trial court

issued a dispositional order, requiring Mother to participate in reunification

services. On August 26, 2015, Mother appealed. Despite the fact that the trial

court had issued an order adjudicating the Child to be a CHINS, in her

appellate brief, Mother challenged the probable cause Order, which was issued

more than five months prior to Mother’s appeal. In our memorandum

decision, we determined that there was a final, appealable order and

accordingly addressed the sufficiency of the evidence supporting the CHINS

adjudication. Mother now asserts that a rehearing is appropriate because we

failed to address the merits of her contention that the trial court erred by finding

probable cause to warrant the filing of a CHINS petition in its March 4, 2015

Order. [4] In its appellate brief, DCS argued that the probable cause Order “is

interlocutory in nature, and is not a final appealable order.” (Appellee’s Br. p.

23). Our court “has jurisdiction in all appeals from final judgments.” Bacon v. Court of Appeals of Indiana | Memorandum Decision on Rehearing 29A02-1508-JC-1306 | July 8, 2016 Page 3 of 5

Bacon, 877 N.E.2d 801, 804 (Ind. Ct. App. 2007) (citing Ind. Appellate Rule

5(A)), trans. denied. “A final judgment disposes of all issues as to all parties,

thereby ending the particular case and leaving nothing for future

determination.” Id. (citing Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind. 2003)).

“Whether an order is a final judgment governs our subject matter jurisdiction,

and it can be raised at any time by any party or by the court itself.” Id. (citing

Georgos, 790 N.E.2d at 451). [5] In a CHINS proceeding, the probable cause finding does not dispose of any

claims; rather, it simply permits DCS to proceed with the case by filing a

CHINS petition. Even Mother appears to concede that the probable cause

Order was a “preliminary order” rather than a final, appealable order. (Reh’g

Petition p. 6). As such, Mother had no standing to appeal “unless the order is

an appealable interlocutory order.” Bacon, 877 N.E.2d at 804. “An

interlocutory order is one made before a final hearing on the merits and requires

something to be done or observed but does not determine the entire

controversy.” Id. We find that this is precisely what the probable cause Order

does. In order to appeal an interlocutory order, the trial court must certify the

order, and our court must accept jurisdiction. Id. (quoting App. R. 14(B)). No

such certification and acceptance occurred in this case. [6] Accordingly, because the probable cause Order was not a final order and

Mother did not seek an interlocutory appeal, her appeal of the probable cause

Order was subject to dismissal. Id. Nevertheless, we have a strong preference

for addressing matters “on their merits when possible.” Kelly v. Levandoski, 825 Court of Appeals of Indiana | Memorandum Decision on Rehearing 29A02-1508-JC-1306 | July 8, 2016 Page 4 of 5

N.E.2d 850, 856 (Ind. Ct. App. 2005), trans. denied. In the case before us, we

were presented with the trial court’s CHINS adjudication—a final order based

on the fact that the trial court had conducted a dispositional hearing—and a

record that enabled us to determine that sufficient evidence existed to support

that adjudication. See In re J.V., 875 N.E.2d 395, 399 (Ind. Ct. App. 2007)

(finding that “[o]nly after a dispositional hearing has been held is there a final,

appealable order because the disposition finally determines the rights of the

parties”), trans. denied. Therefore, we affirm our prior opinion in all respects. [7] Najam, J. and May, J. concur

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