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.
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[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.
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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
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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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