COA dismisses request to make trial court order final

November 15, 2016

The Indiana Court of Appeals has dismissed a mother’s request to characterize an order ending her parent-child relationship as a final order, writing that she still had to option of appealing the trial court’s decision through interlocutory appeal.

To.S. and Z.S.’s children, Tr.S. and N.S.  were removed from their home in November 2014 and adjudicated as children in need of services the following month after both parents were arrested for drug use and possession.

The Hamilton Circuit Court ordered that both parents participate in reunification services, and To.S. was granted weekly supervised visitation with her children. However, DCS filed a motion to suspend visitation between the mother and children in November 2015, alleging that the children were being negatively affected, and the court agreed to the suspension.

Then, at a permanency hearing the following February, the court found that To.S. had not complied with the dispositional order and ordered that DCS was no longer required to provide reunification services to her, with the exception of random drug screens. DCS was ordered to initiate proceedings for the termination of the parent-child relationship and the adoption of the children. In the order, the court wrote that “(the) projected date for finalization of the (Children’s) permanency plan is July 31, 2016.”

To.S. appealed in February 2016, arguing that the court should characterize the order as a final, appealable order. Further, the mother argued that the Court of Appeals should consider her appeal “on the merits as a direct appeal from a final judgment.”

But a panel of the Court of Appeals disagreed Tuesday and dismissed To.S.’s appeal, writing that the trial court’s order did not meet any requirements under Appellate Rule 2(H) to be considered final.

Judge Melissa May, writing for the majority, said that To.S. had correctly argued that if she did not appeal the denial of reunification services, the issue “will not be available for review in a subsequent appeal from the involuntary termination of her parental rights.” However, May also wrote that the mother could challenge the termination of reunification services through an interlocutory appeal.

Further, May wrote that the panel rejected the mother’s argument that an interlocutory appeal is unreasonable because it requires counsel to make a “difficult decision” regarding what issue to raise on appeal within the 30 day notice of appeal deadline.

“We agree with DCS that Mother is essentially ‘pre-appealing’ a possible judgment terminating her parental rights,” May wrote. “As DCS correctly points out, at the time of the appeal, Mother still had the full opportunity to seek services and demonstrate to the trial court at her next hearing that shew as making progress.”

The case is In the Matter of Tr.S. and N.S. (Minor Children) and To.S. (Mother); To.S. (Mother) v. The Indiana Department of Child Services, 29A02-1603-JC-680.