MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 07 2017, 7:08 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Phillips Curtis T. Hill, Jr.
Phillips Law, P.C. Attorney General of Indiana
Boonville, Indiana
Abigail R. Recker
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of R.S. (Minor July 7, 2017
Child) Child in Need of Services, Court of Appeals Case No.
and D.S. (Mother), 87A05-1609-JC-2280
Appellant-Respondent, Appeal from the Warrick Circuit
Court
v. The Honorable Greg Granger,
Judge
The Indiana Department of Trial Court Cause No.
Child Services, 87C01-1507-JC-126
Appellee-Petitioner.
Bailey, Judge.
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Case Summary
[1] D.S. (“Mother”) and J.S. (“Father”) (collectively, “Parents”) appeal the denial
of their Indiana Trial Rule 60(B)(8) motion for relief from judgment. They
present the sole issue of whether the trial court abused its discretion by denying
the request for clarification of a Child in Need of Services (“CHINS”) order to
provide that it did not include a finding of parental neglect. We affirm.
Facts and Procedural History
[2] On May 5, 2010, Parents adopted R.S., who was then eleven years old. On
June 23, 2015, the Indiana Department of Child Services (“DCS”) initiated an
investigation after receiving a report that R.S. and Mother had been engaged in
a physical altercation. It was reported that R.S. was found to be in possession
of an R-rated movie in violation of house rules; Mother verbally confronted
R.S. and pushed against her cheek; R.S. slapped or hit Mother in the arm more
than once; and law enforcement was contacted, leading to DCS intervention.
As of the date of the initial intake report, R.S. had been placed by Mother and
Father into a private respite care foster home. Family Case Manager Briana
Hofman (“Hofman”) interviewed Mother, who indicated that she and Father
were uncertain as to whether R.S. would be allowed to return home. In her
report, Hofman documented her advisement that “if [R.S.] is not allowed back
into their home and they have not found suitable placement for [R.S.], this is
considered abandonment.” (App. Vol. III, pg. 11.)
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[3] On June 26, 2015, Mother contacted Hofman to report that R.S. could not
remain at the respite care home and Parents were not allowing R.S. to return to
their home. Hofman reportedly discussed the possibility of services, but Mother
“was not interested.” (App. Vol. III, pg. 11.) On June 30, 2015, Hofman met
with both Mother and Father. Hofman documented her identification of the
following possible services: “crisis intervention, home-based casework,
homebuilders, in-home therapy, mentors, parent aids, post-adoptive respite
care, and post-adoptive services,” but additionally reported that “[Parents] are
declining all services at this time” and had “signed a paper confirming that they
are not accepting any of the offered services at this time.” (App. Vol. III, pg.
13.) On July 2, 2015, Mother again contacted Hofman regarding a need for
placement for R.S. Per Hofman’s intake report, Mother was again offered
services and again declined. DCS took custody of R.S.
[4] On July 7, 2015, DCS filed a request for court authorization of a petition
alleging R.S. to be a CHINS. On the same day, Parents made certain
evidentiary admissions and the filing of a CHINS petition was authorized.
Additional parental admissions were entered on July 15, 2015. Parents
obtained counsel and moved for amendment of the CHINS petition. On
September 30, 2015, the CHINS court granted the motion for amendment, such
that the word “neglect” was struck from Section 5(a) of the petition and the
section thereafter provided in relevant part: “the child’s physical or mental
condition is seriously impaired or seriously endangered as a result of the
inability or refusal of the child’s parent …” (App. Vol. II, pg. 15.) Also, in
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Section 6(d), the word “refused” was replaced with the word “declined,” with
the section thereafter providing in relevant part: “The parents declined to allow
the child to return to their home, and were unable to provide an alternative
placement for the child.” (App. Vol. II, pg. 15.)
[5] The CHINS order of September 30, 2015 recited that Parents had admitted that
R.S. was a CHINS as defined by Indiana Code Section 31-34-1-1,1 and had
admitted material facts including: DCS received a report regarding R.S. on June
23, 2015; DCS learned that Parents were no longer willing to care for their
child; R.S. had been informally placed in a foster home; and Parents declined to
allow R.S. to return to their home after the foster mother indicated she was not
able to continue caring for R.S. Concluding that “an admission of the
allegations of the petition [had] been entered,” the court adjudicated R.S. a
CHINS. (App. Vol. II, pg. 16.) Parents did not appeal the CHINS
adjudication.
[6] In October of 2015, DCS issued to Mother, who is employed by a child care
agency, a “Notice of Intent to Substantiate Allegations of Child Abuse or
Neglect by a Child Care Worker or Licensed Resource Parent.” (App. Vol. III,
pg. 25.) The Notice advised that, “once the assessment is approved,” Mother
would be identified as a perpetrator of neglect on the Child Protection Index.
1
Three basic elements are required: that the parent’s actions or inactions have seriously endangered the child,
that the child’s needs are unmet, and that those needs are unlikely to be met without State coercion. In re
S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).
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(App. Vol. III, pg. 25.) Mother was advised that she had the right to participate
in an administrative review of the decision with a DCS administrator not
involved in making the recommendation to substantiate. Mother participated
in administrative proceedings and requested an administrative appeal hearing.
[7] On December 15, 2015, DCS filed its Notice of Case Disposition and Motion to
Dismiss; Mother filed a response. The parties disputed whether there had been
a specific finding of neglect in the Order of Adjudication, upon which the
substantiation of neglect could be predicated. On March 24, 2016, the
Administrative Law Judge (“ALJ”) granted summary judgment to DCS.
Mother filed a petition for judicial review of that decision, but did not perfect
the appeal due to failure to timely file the record of administrative proceedings.
[8] On June 16, 2016, Parents filed a Motion for Relief from Judgment pursuant to
Trial Rule 60(B)(8). They asserted that the ALJ interpretation of the Order of
Adjudication to include a determination of neglect had caused hardship,
prejudice, and injustice and requested that the court “clarify its order of
September 30, 2015, to correct the erroneous interpretation by [DCS]” and
prevent Mother’s inclusion on a state registry so that her employment was not
negatively impacted. (App. Vol. II, pgs. 37-38.) The trial court conducted a
hearing on August 23, 2016 and, on August 30, 2016, denied the motion for
relief. This appeal ensued.
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Discussion and Decision
[9] Trial Rule 60(B)(8) provides in relevant part:
On motion and upon such terms as are just the court may relieve
a party or his legal representative from a judgment, including a
judgment by default, for the following reasons: …
(8) any reason justifying relief from the operation of the
judgment, other than those reasons set forth in sub-paragraphs
(1), (2), (3), and (4). . . . A movant filing a motion for reasons (1),
(2), (3), (4), and (8) must allege a meritorious claim or defense.
“The trial court’s residual powers under subsection (8) may only be invoked
upon a showing of exceptional circumstances justifying extraordinary relief.”
Baker & Daniels, LLP v. Coachmen Indus., 924 N.E.2d 130, 140 (Ind. Ct. App.
2010), trans. denied. The circumstances must be other than those enumerated in
the preceding subsections, such as mistake, surprise, or excusable neglect. Id.
In addition to showing sufficient grounds for relief under Trial Rule 60(B), the
movant must also make a prima facie showing of a meritorious claim. Id. at
141. The decision of whether to grant or deny the motion is left to the equitable
discretion of the trial court, and is reviewable only for an abuse of discretion.
Gipson v. Gipson, 644 N.E.2d 876, 877 (Ind. 1994).
[10] Parents’ motion for relief from judgment asserted that they had suffered
“tremendous hardship, prejudice and injustice” stemming from the
administrative substantiation of neglect even though their CHINS admissions
did not employ the words “neglect” or “refuse.” (App. Vol. II, pg. 32.) At the
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hearing on the motion for relief, Parents did not present testimony or other
evidence; rather, argument of counsel was heard. Parents’ counsel requested
that the trial court “correct obvious error” in the CHINS Order of Adjudication
to reflect that the adjudication was based not upon neglect but rather upon R.S.
presenting a danger to herself or others, consistent with Indiana Code Section
31-34-1-6. (Tr. at 28.) Counsel urged clarification of an order that had been
“completely misinterpreted and then misused.” (Tr. at 28.) The trial court’s
order of August 30, 2016 denying Trial Rule 60(B)(8) relief included the
language: “This Court’s Order on Adjudication September 30, 2015 found that
RS was a CHINS pursuant to IC 31-34-1-1 as a result of admissions made by
the parents.” (App. Vol. II, pg. 14.)
[11] On appeal, Parents argue that they did not intend to admit to conduct
amounting to statutory neglect and that the evidence more appropriately
suggests the child’s conduct rather than parental conduct precipitated removal.
Parents contend that DCS should have considered removal on the basis of
Indiana Code Section 31-34-1-6, providing that a child is a child in need of
services if “before the child becomes eighteen (18) years of age: (1) the child
substantially endangers the child’s own health or the health of another
individual; and (2) the child needs care, treatment, or rehabilitation that: (A) the
child is not receiving; and (B) is unlikely to be provided or accepted without the
coercive intervention of the court.” They do not provide a citation to authority
by which the CHINS court could order DCS to draft its petition on one
statutory basis as opposed to another.
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[12] In short, Parents do not deny that they advised DCS that they were no longer
providing a home for R.S. and lacked alternative living arrangements for her, or
that they asked DCS to take custody of R.S. Parents have not challenged the
outcome of the CHINS Order of Adjudication – R.S. spent the remainder of her
minority years outside the parental home, the State fulfilled the role of provider,
and the CHINS court issued a child support order to Parents for a zero-dollar
amount. Parents seek, under a trial rule intended to operate in extraordinary
circumstances where the party also asserts a meritorious defense, not to have
the Order of Adjudication set aside, but to have the language amended such
that a different result would likely ensue in administrative proceedings. A
collateral attack on an underlying judgment – not appealed – and a collateral
attack on related administrative proceedings – not properly appealed – is not
addressable by a Trial Rule 60(B)(8) motion. See Gipson (recognizing that
appellate courts will not permit the bringing of a Trial Rule 60(B)(8) motion as
a substitute for a direct appeal).
Conclusion
[13] Parents have not demonstrated that the trial court abused its discretion in
denying the Trial Rule 60(B)(8) motion for relief from judgment.
[14] Affirmed.
Vaidik, C.J., and Robb, J., concur.
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