ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE LAPORTE CIRCUIT COURT
Autumn Dusk Halaschak Nancy L. Gettinger, Magistrate
Indiana Dep't of Child Services, LaPorte County Michigan City, Indiana
Michigan City, In diana
Robert Henke ATTORNEY FOR APPELLEE LAPORTE COUNTY CASA
Indiana Dep't of Child Services, Central Admin.
Indianapolis, Indiana David. K. Payne
Braje, Nelson & James
Michigan City, Indiana
______________________________________________________________________________ FILED
In the Apr 17 2009, 11:00 am
Indiana Supreme Court CLERK
of the supreme court,
court of appeals and
tax court
_________________________________
No. 46S04-0904-JV-160
IN RE T.S., A CHILD IN NEED OF SERVICES
INDIANA DEPARTMENT OF CHILD SERVICES, LAPORTE COUNTY, Appellant,
v.
LAPORTE CIRCUIT COURT, AND
LAPORTE COUNTY CASA Appellees.
_________________________________
Expedited Appeal from the LaPorte Circuit Court, No. 46C01-0804-JC-48
The Honorable Thomas Alevizos, Judge
The Honorable Nancy L. Gettinger, Magistrate
_________________________________
On Transfer from the Indiana Court of Appeals, No. 46A04-0902-JV-78
_________________________________
April 17, 2009
Dickson, Justice.
To provide an orderly and expedited procedure for appellate review of certain juvenile
court decisions about placement recommendations made by the Indiana Department of Child
Services ("DCS"), this Court promulgated Indiana Appellate Rule 14.1, which became effective
January 1, 2009. Today's case presents the first appeal received under this new rule.
We hold that: (1) Rule 14.1 expedited appeals are available to the process of modifying
dispositional decrees regarding child placement where a juvenile court does not follow DCS's
recommendation, (2) the juvenile court must accept DCS's placement recommendations unless it
finds by a preponderance of the evidence that the recommendation is "unreasonable" or "contrary
to the welfare and best interests of the child," (3) a finding by the juvenile court that DCS's rec-
ommendation is unreasonable or contrary to the child's welfare and best interests is reviewed on
appeal for clear error, and (4) the juvenile court's placement determination in this case was not
clearly erroneous.
T.S., a child, was removed from his mother's care because of allegations of physical
abuse, found to be a Child in Need of Services ("CHINS"), and placed with his half-brother,
K.S., in the foster home of K.S.'s paternal grandparents. After several months, DCS requested
that T.S. be reunited, but the LaPorte Circuit Court, exercising jurisdiction as a juvenile court,
decided it would be contrary to T.S.'s best interests to follow DCS's recommendation and imme-
diately return him to his mother's care. The juvenile court found that T.S. should remain with the
foster parents until the end of the school year.
DCS appealed the juvenile court's decision pursuant to Appellate Rule 14.1, challenging
the court's placement order and contending that its recommendations had been neither unreason-
able, based on the facts and circumstances of the case, nor contrary to the welfare or best inter-
ests of the child. Both the juvenile court and the Court Appointed Special Advocate ("CASA")
responded in support of the juvenile court's decision. The CASA also filed a motion in the Court
of Appeals to dismiss the appeal on grounds that the juvenile court's decision was not within the
category of rulings appealable under Appellate Rule 14.1. The Court of Appeals held that the
juvenile court's ruling was subject to Appellate Rule 14.1 but found that the juvenile court "did
not abuse its discretion in rejecting DCS's placement recommendation." In re T.S., 902 N.E.2d
332, 333 (Ind. Ct. App. 2009). DCS sought transfer, asserting that the Court of Appeals used the
incorrect standard of appellate review. We granted transfer.
2
This expedited appeal of the juvenile court's determination thus presents this Court with
three issues: (1) whether the juvenile court's order rejecting DCS's placement recommendation is
eligible for expedited appeal under Rule 14.1, (2) what is the appropriate appellate standard of
review applicable for such expedited appeals, and (3) whether the juvenile court properly re-
jected DCS's recommendation to immediately return T.S. to his mother's custody.
As to whether the juvenile court's decision was appealable under Rule 14.1, we agree
with DCS and the Court of Appeals that it was. Rule 14.1 provides that orders entered under In-
diana Code § 31-34-19-6.1(f) are eligible for expedited appeal. In this case, DCS requested that
the juvenile court modify its earlier dispositional decree "by removing [T.S.] from his current
foster placement and immediately returning him to Mother's care and custody." In re T.S., 902
N.E.2d at 334. Section 31-34-23-1(2)(C) gives DCS the authority to request such a modification,
section 31-34-23-3(b) requires the juvenile court to hold a hearing on such request, and section
31-34-23-4 provides that section 31-34-19 "appl[ies] to the preparation and use of a modification
report" and that DCS shall prepare a report in such a hearing. What may have originally begun
as a periodic review became a modification hearing on the juvenile court's initial order of dispo-
sition.
Here, the juvenile court reached a result contrary to the DCS recommendations, made
written findings, and concluded that it "is in [T.S.]'s best interest to remain in current rela-
tive/foster placement until the end of the 2008-2009 school year," and that "[t]o immediately re-
move him from this home at this time would be disruptive, counterproductive to the progress he
has been making and not in his best interests." Appellant's App'x at 23 This was consistent with
sections 31-34-19-6.1(d) and (e), which provide that the court shall enter its dispositional decree
with written findings and conclusions and specifically state why it is not accepting DCS's final
recommendations contained in DCS's supplemental report. Section 31-34-19-6.1(f), in turn, pro-
vides:
If the juvenile court enters its findings and decree under subsections (d) and (e), the de-
partment may appeal the juvenile court's decree under any available procedure provided
by the Indiana Rules of Trial Procedure or the Indiana Rules of Appellate Procedure to
allow any disputes arising under this section to be decided in an expeditious manner.
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Ind. Code § 31-34-19-6.1(f) (emphasis added). The juvenile court's placement order therefore
constitutes a new dispositional decree, and DCS is thus appealing the juvenile court's placement
order entered under § 31-34-19-6.1. Rule 14.1's clear language permits an expedited appeal in
cases of disagreement between the juvenile court and DCS under this section.
We next consider the proper standard of review to be applied by appellate courts consi-
dering such expedited appeals. The function of the juvenile court in the underlying determina-
tion is specifically delineated by statute:
The juvenile court shall accept each final recommendation of [DCS] . . . unless the ju-
venile court finds that a recommendation is:
(1) unreasonable, based on the facts and circumstances of the case; or
(2) contrary to the welfare and best interests of the child.
Id. § 31-34-19-6.1(d). But the parties disagree regarding the proper standard of appellate review
when, as in this case, the juvenile court makes a determination under this statute that is contrary
to the final DCS recommendation and DCS initiates an expedited appeal. DCS argues that
the statute specifically provides the applicable standard of review: the trial court is to ac-
cept DCS's recommendations, unless they are unreasonable or contrary to the welfare
and best interests of the child. The statute presumes DCS's recommendations are correct.
Accordingly, on review, deference must be given DCS, and the onus is upon the trial
court to show why DCS's recommendations are unreasonable or contrary to the child's
welfare and best interests. Given deference to the trial court while on review abrogates
the clear intent of the statute.
DCS Pet. to Transfer from Ind. App. R. 14.1 Expedited Appeal at 1.
We agree with the DCS as to the statute's operation at the trial court level, but find that
appellate review is guided by existing standards. The statute makes clear that the juvenile court
is to accept DCS's recommendations unless the court finds that they are "unreasonable, based on
the facts and circumstances of the case," or "contrary to the welfare and best interests of the
child." Ind. Code § 31-34-19-6.1(d). And the statute requires, in the event "the juvenile court
does not accept one (1) or more of [DCS's] final recommendations," that the court enter "written
findings and conclusions" and "specifically state why the juvenile court is not accepting the final
recommendations." Id. § 31-34-19-6.1(e). Indiana Code § 31-34-12-3 provides that any finding
4
by a juvenile court (unrelated to termination of parental rights or child delinquency) must be
based on a preponderance of the evidence.
We thus agree with DCS that the statute creates in the juvenile court a presumption of
correctness for the DCS final recommendations, relieving DCS of the burden of initially coming
forward with evidence to support its findings and requiring that any resulting decision contrary to
the DCS recommendation must be supported by a preponderance of the evidence. Because of
the statutory presumption favoring DCS's final recommendations, juvenile courts thus lack unfet-
tered discretion to make a contrary decision.
But once the juvenile court has appropriately considered the DCS recommendations in
light of the relevant evidence and reached a contrary conclusion, the appellate function is go-
verned by Indiana Trial Rule 52, which states that "the court on appeal shall not set aside the
findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity
of the trial court to judge the credibility of the witnesses." Ind. T.R. 52(A). As acknowledged by
DCS,1 this review is implemented on appeal by a two-tiered analysis, considering first whether
the evidence supports the findings and then whether the findings support the judgment. See Bes-
ter v. Lake County Office of Family and Children, 839 N.E.2d 143, 147 (Ind. 2005) (applying
this standard to the termination of parental rights). Findings are clearly erroneous when there are
no facts or inferences drawn therefrom that support them. Quillen v. Quillen, 671 N.E.2d 98,
102 (Ind. 1996). A judgment is clearly erroneous if the findings do not support the trial court's
conclusions or the conclusions do not support the resulting judgment. Id. The appellate court
should not reweigh the evidence or judge the credibility of witnesses, but should view the evi-
dence and its reasonable inferences most favorably to the judgment. Dunson v. Dunson, 769
N.E.2d 1120, 1123 (Ind. 2002). It is thus more apt to describe appellate review of determina-
tions under this statute as applying "clearly erroneous" rather than "abuse of discretion" as the
operative standard.
With regard to the DCS's challenge to the juvenile court's decision in this case, we must
thus evaluate whether the court's departure from the final DCS recommendation was clearly er-
1
Appellant's Br. at 1
5
roneous. To support its appellate claim, DCS argues the juvenile court's decision to allow T.S.
"to remain in foster care until the end of the school year is not in his best interest and was clearly
erroneous as it was not based on the facts and circumstances before the court." Appellant's Br. at
2. DCS emphasizes evidence tending to support its recommendation and minimizes evidence
supporting the juvenile court's decision. It does not, however, identify any of the juvenile court's
individual written findings as lacking in supporting evidence. The essential thrust of DCS's ap-
pellate contention, as seen in its concluding summary, is that "the trial court has not shown" that
DCS's recommendations were unreasonable or contrary to the welfare and best interest of the
child. Id. at 8.
The juvenile court expressly concluded that DCS's recommendations are "contrary to the
welfare and best interests of the child and are unreasonable based on the facts and circums-
tances" and then supported this conclusion with specific factual findings. Appellant's App'x at
22-23. The juvenile court discussed the evidence of T.S.'s relationship with his mother, his
school performance, his relationship with his foster parent, his personal wishes, the history of
physical abuse to T.S. from his mother, the mother's prior substance abuse, the mother's more
recent intensive substance abuse treatment, and the advantages of waiting until the end of the
current school year to begin reunification with his mother. Id. DCS has not established or as-
serted that any of the juvenile court's specific factual findings are unsupported by any facts or
inferences. Nor has DCS shown that the findings fail to support the juvenile court's determina-
tion contrary to the DCS recommendations. We decline to find that the juvenile court's determi-
nation was clearly erroneous.
We affirm the juvenile court.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
6