To.S. ("Mother") appeals the trial court's Order Approving Permanency Plan and On Review Hearing,
Facts and Procedural History
Mother and Z.S. ("Father")
On November 18, 2015, DCS filed a Motion to Suspend Visitation between Mother and Children, alleging Children were having negative reactions to visitation with Mother. On December 28, 2015, the court held a fact-finding hearing regarding DCS's request to suspend visitation. DCS's family case manager and Children's therapist testified at the hearing. Children's therapist testified N.S. was not eating and Tr.S. was "expressing fear" after a visit with Mother. (Tr. at 46.) Children's therapist recommended visitation be suspended. The court suspended visitation.
On February 11, 2016, the trial court held a Permanency Hearing. It found Mother had not complied with the Dispositional Order. It further found visitation between Mother and Children should remain suspended and, in the best interests of Children, DCS should initiate proceedings for termination of the parent-child relationship. Additionally, the court ordered DCS was no longer required to provide reunification services to Mother, with the exception of random drug screens. The court then ordered the permanency plan for Children changed from reunification to termination of the parent-child relationship and subsequent adoption. The order stated, "[t]he projected date for finalization of [Children's] permanency plan is July 31, 2016." (App. Vol. II at 33.) The court set the case for a Permanency and Review Hearing on August 11, 2016.
Discussion and Decision
Mother appeals the trial court's February 11, 2016, order. She contends we should characterize the order as a final, appealable order. In response, DCS argues we should dismiss this appeal for lack of subject matter jurisdiction.
Our authority to exercise appellate jurisdiction is generally limited to appeals from final judgments, certain interlocutory orders, and agency decisions. In re D.W., 52 N.E.3d 839, 841 (Ind.Ct. App.2016), trans. denied; see also Ind. Appellate Rule 5 (defining cases over which Court of Appeals has jurisdiction). Here, Mother argues we should consider her appeal "on the merits as a direct appeal from a final judgment." (Appellant's Br. at 6.)
Under Indiana Appellate Rule 2(H), a judgment is final if:
The trial court's February 11, 2016, order meets none of the above requirements. We have repeatedly held such orders are not final appealable orders. See In re D.W., 52 N.E.3d at 841 (holding an
Mother is essentially appealing the denial of reunification services. She states she "believes she is required to request needed reunification services at the earliest opportunity during the CHINS proceeding, or risk permanent waiver of her request for continuing and additional services." (Appellant's Br. at 16.) She contends the issue "will not be available for review in a subsequent appeal from the involuntary termination of her parental rights." (Id. at 24.) Mother is correct that failure to provide services cannot serve as a basis for later attacking a termination order. See In re J.W., Jr., 27 N.E.3d 1185, ¶ 90 (Ind.Ct.App.2015) (noting requirement for DCS to provide reasonable services was not a requisite element of parental rights termination statute and DCS's failure to provide services could not serve as basis to attack termination order), trans. denied. However, Mother could challenge the trial court's decision to terminate reunification services by filing an interlocutory appeal.
Indiana Appellate Rule 14(B) outlines the certification procedure for parties pursuing an appeal from an interlocutory order. It describes the time for filing a motion requesting certification of an interlocutory order, content of the motion, and grounds for granting interlocutory appeals. Ind. Appellate Rule 14(B)(1)(a)-(c). Indeed, Rule 14(B)(1)(c)(iii) contemplates the very situation Mother describes: that "the remedy by appeal is otherwise inadequate." Because Rule 14(B) provides Mother an opportunity to bring her case before us properly, we decline to adopt her reasoning to consider this order a final judgment. (See Appellant's Br. at 15 ("Mother repeats her concern that if she is not afforded the opportunity to appeal the court's decision to withhold requested services, that this important right may forever be lost and may not be available for later review.").)
Nor do we find any merit in Mother's assertion that filing an interlocutory appeal is unreasonable to expect of parties because it requires counsel to make a "difficult decision." (Id. at 21.) Mother argues appellants need more than thirty days to examine the record and "make informed, sound decisions regarding the issues to be raised on appeal, and on the propriety of pursuing interlocutory certification over a blind, hasty filing of a Notice of Appeal." (Id. at 29.) We disagree that
We agree with DCS that Mother is essentially "pre-appealing" a possible judgment terminating her parental rights. (Appellee's Br. at 9.) As DCS correctly points out, at the time of this appeal, Mother still had the full opportunity to seek services and demonstrate to the trial court at her next hearing that she was making progress.
Because Mother has not followed the proper procedure to seek a discretionary interlocutory appeal, we lack subject matter jurisdiction. Accordingly, we dismiss. See K.F., 797 N.E.2d at 315 (finding Court of Appeals lacked jurisdiction where parents appealed from permanency plan order without proceeding under Indiana Appellate Rule 14).
KIRSCH, J., and CRONE, J., concur.