MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 06 2018, 8:42 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott A. Norrick Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Katherine A. Cornelius
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of Z.J.W. March 6, 2018
(Minor Child): Court of Appeals Case No.
48A02-1710-JC-2322
Appeal from the Madison Circuit
L.S., Court
Appellant-Petitioner/Intervenor, The Honorable G. George Pancol,
Judge
v.
Trial Court Cause Nos.
48C02-1307-JC-159
The Indiana Department of 48C02-1610-GU-576
Child Services,
Appellee-Petitioner/Intervenor.
Bailey, Judge.
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Case Summary
[1] L.S. (“Paternal Grandmother”) intervened in a Child in Need of Services
(“CHINS”) action involving Z.J.W. (“Child”). After the CHINS court
authorized the filing of a petition for termination of parental rights, Paternal
Grandmother filed a petition for guardianship. The parallel actions proceeded
at some length, with conflicting custody results, and Paternal Grandmother
eventually sought a consolidated hearing. The Madison Circuit Court entered a
consolidated order declaring that the guardianship order had been dismissed
and the CHINS court was the proper court for future litigation. Paternal
Grandmother requested that the order be certified for interlocutory appeal; the
motion was denied. She then filed a motion to correct error, which was denied.
She now appeals. We affirm.
Issues
[2] Paternal Grandmother presents two issues, which we restate as follows:
I. whether the trial court, having dismissed the CHINS
action, lacked jurisdiction to reinstate it one day later or to
enter any subsequent CHINS order involving Child; and
II. whether the guardianship action survived.
Facts and Procedural History
[3] On July 24, 2013, Z.W.’s parents (“Father” and “Mother”) admitted that Child
was a CHINS. Child was initially placed with his half-sister, at the half-sister’s
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paternal grandmother’s home. Mother agreed to the termination of her
parental rights. Father participated in some services and was briefly reunited
with Child; however, Child was later removed from Father’s care and placed in
the home of Foster Parents. Foster Parents adopted Child’s half-sibling and
expressed a willingness to adopt Child.
[4] In July of 2015, the CHINS permanency plan for Child was changed to
adoption. In July of 2016 and July of 2017, the CHINS court approved
subsequent permanency plans for adoption. On November 1, 2016, Paternal
Grandmother was granted leave to intervene in the CHINS proceeding; the
DCS filed an unsuccessful motion for reconsideration.
[5] One day prior to the CHINS intervention, on October 31, 2016, Paternal
Grandmother had petitioned to be appointed Child’s guardian, and the
Madison Circuit Court Clerk assigned a guardianship cause number. Father
executed and filed his consent to Paternal Grandmother’s guardianship. The
DCS was not initially joined as a party; however, the DCS was granted leave to
intervene.1 On November 7, 2016, the DCS moved to dismiss the guardianship
petition, alleging defective service; the motion was granted on November 29,
1
Indiana Trial Rule 19 provides in relevant part that a party shall be joined if “he claims an interest relating
to the subject of the action and is so situated that the disposition of the action in his absence may: (a) as a
practical matter impair or impede his ability to protect that interest, or (b) leave any of the persons already
parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by
reason of his claimed interest.”
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2016. Thereafter, on December 6, 2016, Paternal Grandmother filed a response
to the DCS’s allegations and a motion to set aside the dismissal order.
[6] On December 9, 2016, the trial court reviewed the motion to set aside the
dismissal and scheduled the matter for a hearing. On January 19, 2017, the
trial court conducted a hearing at which Child’s paternal relatives and his
Family Case Manager testified. On January 27, 2017, the trial court issued an
order appointing Paternal Grandmother guardian of Child.
[7] Foster Parents were permitted to intervene and they filed a motion to set aside
the guardianship order. The DCS filed a motion to correct error on February
24, 2017. On February 28, 2017, the trial court denied the motion to correct
error. Subsequently, the trial court denied the motion to set aside.
[8] On March 28, 2017, the trial court issued an order providing:
Comes now the Court after taking this matter under advisement,
considers the Interveners[’] request, and also reconsiders the
Department of Child Services Motion to Dismiss and Motion to
Correct Errors. The Court finds that the Motion to Dismiss is
denied. However, the Court does set aside the Guardianship in
this matter and finds that pursuant to IC 31-30-1-1 that the Court
will stay all proceedings in the Guardianship pending the
dismissal of the CHINS case or the permanency plan being
modified to a plan for appointment of a guardian.
(App. Vol. II, pg. 80.) A corresponding entry was made into the Chronological
Case Summary indicating that the guardianship was set aside but the
guardianship proceedings were stayed.
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[9] On August 2, 2017, Paternal Grandmother filed an objection to CHINS court
jurisdiction. Two days later, she moved to limit DCS participation, lift the stay,
and reinstate her guardianship of Child. Foster Parents filed a response. The
DCS filed a memorandum of law and a “Request for Relief in Ongoing
CHINS/Guardianship/Termination Proceedings.” (App. Vol. II, pg. 9.)
Notwithstanding the trial court’s earlier order of dismissal or stay, the court set
the matter for a hearing.
[10] Meanwhile, Father had filed – on March 7, 2017 – a motion to dismiss the
CHINS proceedings. Therein, he advised the court that a hearing had been
held on January 19, 2017 and that, on January 26, 2017, guardianship of Child
had been awarded to Paternal Grandmother. According to Father’s petition:
That undersigned counsel request[s] that DCS dismiss the
CHINS and TPR case as there is no longer need for coercive
intervention of the court and the permanency of the child has
been determined by granting of the guardianship.
(App. Vol. II, pg. 233.)
[11] On April 3, 2017, the CHINS court granted Father’s motion to dismiss.2
However, on the following day, the court entered an order, upon its own
motion, setting aside the order granting the motion to dismiss, and setting the
2
Paternal Grandmother filed a separate motion to dismiss and request for change of placement, which the
CHINS court denied on March 22, 2017, shortly before ruling upon Father’s motion to dismiss.
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matter for hearing. The order included the notation: “DCS is responsible for
the child’s placement and care.” (App. Vol. II, pg. 192.)
[12] Upon Paternal Grandmother’s motion to consolidate the causes of action
regarding Child for purposes of a hearing, the Madison Circuit Court conducted
hearings on August 15, 2017 and on August 30, 2017.3 On the latter date, the
trial court entered the order underlying Paternal Grandmother’s motion for
certification of interlocutory appeal and motion to correct error:
The Court having taken this matter under advisement and
reviewing all of the pleading[s] filed now makes the following
findings and order:
Justice David, in his decision [In re M.B., 51 N.E.3d 230 (Ind.
2016)], stated that the custody Court had subject matter
jurisdiction however, where the Juvenile Court was already
exercising exclusive jurisdiction over the CHINS proceeding and
the independent custody action did not arise out of one of the
enumerated exceptions to that exclusive jurisdiction, the Court in
which the independent custody action was filed must stay the
proceeding and abstain from exercising its jurisdiction until the
CHINS case is concluded.
In this case the Court finds no exception to the exclusive
jurisdiction of the Juvenile Court. However, IC 31-35-2-3 does
provide concurrent jurisdiction when a Termination Petition has
been filed and IC 31-34-21-7 requires that if a CHINS Petition is
pending that the Guardianship be transferred to the Juvenile
Court having exclusive jurisdiction over the CHINS matter,
3
These hearings were not transcribed.
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therefore, the Juvenile Court and Presiding Judge of that Court
have exclusive jurisdiction over the Guardianship matter to avoid
competing judicial actions.
The Juvenile Court, and the Presiding Judge of the Juvenile
Court is presiding over the CHINS matter as well as the
Guardianship matter and therefore had jurisdiction to proceed in
this Guardianship. The Court finds that due to the fact that a
Petition for Termination was filed and the case was filed in the
Juvenile Court, the Juvenile Court did have and does have
jurisdiction to proceed on the Guardianship.
However, the Court does find that the Petition for Guardianship
did lack the statutory requirements as pointed out by the
Department of Child Services and that case was dismissed and
while the Court has subject matter jurisdiction to hear the
Guardianship and exclusive jurisdiction, which would avoid any
stay in the Guardianship, the Court shows that that dismissal was
granted. That cause was never reinstated and that all
proceedings in that action after the granting of the dismissal are
hereby vacated by the Court. Consequently, the CHINS Petition
will remain in full force and effect and all proceeding[s] will be
continued under that CHINS Petition. The Termination Petition
will also remain as an active case and is to be rescheduled for a
hearing. The Court [is] making a specific finding that all
proceedings in the CHINS matter and any future filing of
Guardianship are to be heard by the Presiding Judge and sets this
matter for review on August 30, 2017 at 1:30 p.m.
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(Appealed Order, pgs. 1-2.)4 Paternal Grandmother filed a Motion for
Certification of Interlocutory Appeal, claiming that the court had misconstrued
the guardianship record to support vacation of some proceedings and had also
failed to address pending motions and a jurisdictional objection. The motion
for certification of interlocutory appeal of the August 30, 2017 order was denied
on September 5, 2017. On September 8, 2017, Paternal Grandmother filed a
motion to correct error; the motion was denied four days later. She now
appeals.5
Discussion and Decision
Standard of Review
[13] Paternal Grandmother’s Notice of Appeal indicates that she appeals from the
denial of a motion to correct error. The trial court’s decision on a motion to
correct error comes to this Court with a presumption of correctness; and the
appellant bears the burden of showing an abuse of discretion. Faulkinbury v.
Broshears, 28 N.E.3d 1115, 1122 (Ind. Ct. App. 2015). Here, the motion to
correct error challenged the August 30, 2017 order.
4
On August 31, 2017, Paternal Grandmother and Father filed Motions to Modify Permanency Plan and for
Placement, to which the DCS objected. On September 30, 2017, the CHINS court denied the request for
change of placement.
5
The parental rights termination petition had already been set for hearing. Also, Foster Parents filed a
petition to adopt Child and Paternal Grandmother filed a competing petition for adoption.
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[14] The August 30, 2017 order was a response to Paternal Grandmother’s
contentions that the CHINS court lacked jurisdiction to proceed after
dismissing and reinstating the CHINS action and that, instead, the
guardianship order should be reinstated or enforced. The order set forth the
basis for the CHINS court jurisdiction and clarified the court’s position that the
guardianship petition had been dismissed and never reinstated. No disputed
issues of fact were involved. An issue presenting a pure question of law is
reviewed de novo. Austin v. State, 997 N.E.2d 1027, 1039 (Ind. 2013).
CHINS Court Jurisdiction
[15] After multiple parties interested in the care and custody of a child pursued, at
some length, parallel legal proceedings and, in the process, generated
voluminous pleadings, motions to set aside, and arguments, resulting in various
dismissals, reinstatements, and conflicting orders, one party finally sought a
consolidated hearing. The resulting order referenced both the guardianship and
CHINS cause numbers.
[16] At the outset, the consolidated order acknowledged our Indiana Supreme
Court’s decision In re M.B., 51 N.E.3d 230 (Ind. 2016). A CHINS proceeding
regarding M.B. was pending when paternal relatives unsuccessfully sought to
intervene and then filed an emergency petition for custody under a separate
cause number in the same county as the CHINS case. Id. at 232. The trial
court determined that the relatives did not have standing to bring an
independent custody action and the court did not have jurisdiction to hear the
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independent custody matter while a CHINS case was pending. Id. On transfer,
the Indiana Supreme Court found that dismissal for lack of standing and
jurisdiction was error. Id. The Court stated its holding as follows:
We hold that Aunt and Uncle had standing to bring the
independent custody action. We also hold that the Posey Circuit
Court has subject matter jurisdiction over the independent
custody action, but should have stayed the proceedings and
abstained from exercising its jurisdiction until the CHINS action
concluded. The juvenile court’s exercise of exclusive jurisdiction
over the CHINS proceeding did not divest the circuit court of
subject matter jurisdiction over an independent custody action,
but it did require the circuit court to postpone its exercise of
jurisdiction. We advise that the term “jurisdiction” should not be
used too broadly.
Id. at 232-33. The Court went on to explain that a court may have jurisdiction
at a time when it is not appropriate to exercise that jurisdiction:
[W]e conclude that the Posey County Circuit Court did possess
subject matter jurisdiction, which is properly defined as “the power
to hear and determine cases of the general class to which any
particular proceeding belongs.” K.S., 849 N.E.2d at 540. Yet,
having jurisdiction does not automatically mean that it would be
appropriate for the circuit court to exercise that jurisdiction.
“[C]ourts of concurrent jurisdiction cannot exercise jurisdiction
over the same subject at the same time, and [] where one of the
courts acquires jurisdiction of the subject matter and the parties,
it is vested with such jurisdiction to the exclusion of the other
court until the final disposition of the case.” State ex. Rel.
American Fletcher Nat. Bank & Trust Co. v. Daugherty, 258 Ind. 632,
634-35, 283 N.E.2d 526, 528 (1972). In addition, “[t]his rule is
not mitigated where the subject matter before the separate courts
is the same, but the actions are in different forms.” Id.
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In the present case, a CHINS proceeding and a custody action
are distinct in form, but we acknowledge that both involve the
same subject matter, which is the care and custody of M.B. Due
to this, it would have been appropriate for the circuit court to
have allowed the parties to file their independent custody action,
but stay the action until the conclusion of the CHINS
proceeding, or, had the parties filed a 12(B)(8) motion, the court
could possibly have dismissed on those grounds. A court of
concurrent jurisdiction should abstain from exercising that
jurisdiction when the subject matter is properly before another
court. We seek to clarify that abstention is not the same as
relinquishing or being divested of jurisdiction[.] . . . Again, it
would have been appropriate in the present case for the circuit
court to simply postpone its exercise of jurisdiction over the
independent custody action until the conclusion of the CHINS
proceeding. A stay would not be necessary in cases arising under
one of the enumerated exceptions of Indiana Code § 31-30-1-1(2),
which clearly provides for specific cases to continue in other
courts while a CHINS proceeding is pending.
We advise that, absent a 12(B)(8) motion from the parties, the
circuit court may allow the parties to file an independent custody
action while a CHINS proceeding is pending in juvenile court.
However, the circuit court may not exercise its jurisdiction over
that action until the CHINS proceeding has concluded. Rather,
all action in the custody case should be stayed.
Id. at 235-36. Here, the guardianship action involves the same subject matter as
the CHINS case, the care and custody of Child. The Madison Circuit Court
correctly acknowledged that the M.B. reasoning was applicable to the matter
before it. Paternal Grandmother’s guardianship claim should not have
proceeded before the CHINS case concluded.
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[17] However, according to Paternal Grandmother, there was no CHINS case to
proceed after the court dismissed the CHINS case on April 3, 2017. Paternal
Grandmother asserts that the CHINS court had no basis upon which to
reinstate the CHINS case on the following day.
[18] Indiana Code Section 31-30-1-1(2) grants exclusive original jurisdiction to the
juvenile court in proceedings in which a child is alleged to be a CHINS.
Pursuant to Indiana Code Section 31-30-2-1(a), the juvenile court’s jurisdiction
over a delinquent child or a CHINS continues until the child becomes twenty-
one years of age, unless the court discharges the child and the child’s parent
guardian, or custodian at an earlier time (emphasis added).
[19] Paternal Grandmother asserts that a dismissal is an irrevocable discharge of a
CHINS case, absent statutory authority for reinstatement. See Ind. Code § 31-
34-21-11, providing: “When the juvenile court finds that the objectives of the
dispositional decree have been met, the court shall discharge the child and the
child’s parent, guardian, or custodian.” Paternal Grandmother directs our
attention to Lake Cty. Div. of Fam. & Child Servs. v. Charlton, 631 N.E.2d 526
(Ind. Ct. App. 1994) (a child was no longer a CHINS pursuant to the statutory
definition, where the parents were meeting the child’s medical needs) and In re
A.T., 889 N.E.2d 365 (Ind. Ct. App. 2008) (holding that CHINS court lacked
jurisdiction over the nineteen-year-old former CHINS, and could not properly
set aside dismissal and reinstate wardship upon her petition), trans. denied.
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[20] The In re A.T. Court relied, in part, upon W.L. v. State, 707 N.E.2d 812 (Ind. Ct.
App. 1999). W.L. had been adjudicated delinquent, and was placed on
suspended commitment; the State filed a Motion to Reopen for Restitution. Id.
at 813. The motion was granted and the trial court conducted a restitution
hearing; W.L. appealed. Id. He argued that the trial court was divested of
jurisdiction after entering the dispositional decree. Id. This Court found an
absence of jurisdiction, explaining:
In summary, a juvenile court that retains jurisdiction over a
juvenile may modify a dispositional decree so long as it retains
such jurisdiction. See IC § 31-37-22-1(2)(E). In the instant case,
however, the court discharged W.L. upon entry of the
dispositional decree and thus did not retain jurisdiction. After
being divested of jurisdiction, the court could reacquire
jurisdiction only through the means set forth in IC § 31-30-2-3 or
IC § 31-30-2-4. Our examination of the record reveals that the
juvenile court did not reassume jurisdiction over W.L. through
either of those means or in any other manner authorized by
statute. As a result, the court was without jurisdiction to rule
upon the Motion to Reopen for Restitution.
Id. at 814. The statutory bases for reinstatement are found in Indiana Code
Section 31-30-2-3 (sua sponte reinstatement within thirty days upon notification
from the Department of Correction regarding the child’s release) and 31-30-2-4
(on petition of the Department of Correction). In re A.T., 889 N.E.2d at 368.
[21] Paternal Grandmother then argues that the CHINS action involving Child did
not involve one of these statutory bases for reinstatement. We agree with
Paternal Grandmother that a discharged CHINS case may not be reinstated
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upon a motion for reconsideration or an alternative non-statutory basis
advanced by a party. Here, however, we are confronted with a court’s sua
sponte retraction of its order from the prior day. Thus, the question becomes
whether a CHINS court may promptly correct error upon its own initiative
before the placement of a child is changed. The authorities cited by Paternal
Grandmother, pertaining to CHINS dismissal and reinstatement, do not
explicitly hold that a CHINS court is deprived of the ordinary incidents of
entering a judgment, including the ability to correct error from oversight.
[22] Indiana Trial Rule 60(A), available to correct non-substantive error, provides:
Of its own initiative or on the motion of any party and after such
notice, if any, as the court orders, clerical mistakes in judgments,
orders or other parts of the record and errors therein arising from
oversight or omission may be corrected by the trial court at any
time before the Notice of Completion of Clerk’s Record is filed
under Appellate Rule 8. After filing of the Notice of Completion
of Clerk’s Record and during an appeal, such mistakes may be
corrected with leave of the court on appeal.
[23] The DCS contends that the CHINS court was correcting an oversight stemming
from a miscommunication, that is, the CHINS court had not been apprised of
the Guardianship order(s) entered after Father’s motion was filed. The DCS
has advised that a meeting took place on April 4, 2017, in the judge’s chambers
and that this meeting included attorneys for Paternal Grandmother, Father, the
DCS, and Foster Parents. Allegedly, the court was made aware that Father’s
motion to dismiss contained obsolete information, prompting the trial court to
rescind its order of one day earlier. This discussion, if it took place, is not
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reflected in the record before us. Nor is there a statement of evidence compiled
pursuant to Indiana Appellate Rule 31.6
[24] On the record before us, we simply cannot discern precisely why the CHINS
court took the action that it did. However, Trial Rule 60(A) does not obligate
the trial court to provide specific reasons. Nor does this Rule “by its terms”
operate to “preclude a trial court from correcting mistaken orders which are
appealable orders.” Somerville Auto Transport Service, Inc. v. Automotive Finance
Corp., 12 N.E.3d 955, 964 (Ind. Ct. App. 2014). In Somerville, the trial court had
dismissed the case based upon the mistaken belief that a party did not appear;
the court sua sponte placed the cause of action back on the active docket after
recognizing its oversight. Appellant Somerville argued that Trial Rule 60(A)
could not provide relief from a dismissal with prejudice because the dismissal
was not a clerical mistake and the rule was not intended to be used for
correcting errors of substance; this Court affirmed the trial court’s orders. 12
N.E.3d at 961. We reasoned:
[I]f the error is purely mechanical, the trial court retains the
authority, by virtue of Rule 60(A), to modify its erroneous order.
If the error is substantive, a Trial Rule 60(A) motion may not be
used to correct it.
6
Appellate Rule 31 (A) provides that, where no transcript of all or part of the evidence is available, a party
may prepare a verified statement of the evidence and file a motion to certify the statement of evidence with
the trial court. Subsection (D) provides that, if statements or conduct of the trial court judge are in
controversy, and the trial court judge refuses to certify the statement of evidence, the trial court shall file an
affidavit setting forth his or her recollection of the disputed statements or conduct.
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We observe that, while the dismissal order here is not the result
of a typographical error and involves a dismissal which, as
Somerville notes, was an appealable order, we note that Trial
Rule 60(A) by its terms does not preclude a trial court from
correcting mistaken orders which are appealable orders. See Trial
Rule 60(A) (noting the court may correct an order “any time
before the Notice of Completion of Clerk’s Record”). While the
court’s mistake in this case – believing the parties did not appear
to present arguments at the June 27, 2011 hearing – was not a
fact expressly stated in the order of dismissal, the record shows
and the trial court found that the order was based solely upon the
court’s mistake or oversight. We find that the court’s mistaken
belief, where the parties suggested in their filings and briefs that
the mistake was the result of an oversight or a
miscommunication between or actions taken by members of the
court’s staff, is more akin to a mechanical mistake than a
substantive mistake in character.
Id. at 963-64.
[25] Here, too, there is every reason to believe that the CHINS court had not been
apprised of the most recent proceedings concerning Child’s custody when it
dismissed the CHINS action. Father had not amended his pleading in that
regard. In the face of apparent mistake or oversight, the CHINS court was not
precluded from summarily correcting its order upon its own initiative. We
cannot provide Paternal Grandmother with any relief on her claimed
jurisdictional grounds.
Declaration that Guardianship was Dismissed
[26] Pursuant to the guidance of M.B., Paternal Grandmother’s guardianship
proceeding should have – at a minimum – been subject to a stay. It was
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arguably also subject to dismissal for non-compliance with statutory
requirements. There was, however, contradictory language employed in the
order of March 28, 2017. As the proceedings unfolded, Paternal Grandmother
sought relief upon the premise that a stay was in place, which could be lifted.
The August 30, 2017 order, not independently a model of clarity, both
recognized an earlier dismissal as opposed to a stay and purportedly vacated all
post-dismissal proceedings.
[27] At bottom, the court issued an order of clarification in a consolidated hearing
and did not adjudicate the contested issue of custody. As such, the order is
interlocutory.7 Indeed, Paternal Grandmother took this position in filing her
Motion for Certification of Interlocutory Appeal. The subsequent filing of a
motion to correct error did not convert an interlocutory order into a final
appealable judgment. See Bayless v. Bayless, 580 N.E.2d 962, 966 (Ind. Ct. App.
1991) (recognizing that “the denial of the motion to correct errors did not
transform the matter into a final judgment”), trans. denied. By all indications,
here the parties continued to litigate Child’s custody. “An attempt to appeal an
interlocutory order as if it were a final judgment results in waiver of the issue.”
Id. In sum, we are unable to afford Paternal Grandmother any meaningful
7
Indiana Appellate Rule 2(H) provides that a judgment is a final judgment if: (1) it disposes of all claims as
to all parties; (2) the trial court in writing expressly determines under Trial Rule 54(B) or Trial Rule 56(C)
that there is no just reason for delay and in writing expressly directs the entry of judgment; (3) it is deemed
final under Trial Rule 60(C); (4) it is a ruling on a mandatory or permissive Motion to Correct Error which
was timely filed under Trial Rule 59 or Criminal Rule 16; or (5) it is otherwise deemed final by law.
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relief based upon alleged error in the Madison Circuit Court’s summary
clarification of its earlier orders.
Conclusion
[28] Paternal Grandmother has not shown that the Madison Circuit Court, presiding
over a CHINS matter, lacked jurisdiction. Paternal Grandmother has not
perfected an interlocutory appeal.
[29] Affirmed.
Kirsch, J., and Pyle, J., concur.
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