Court of Appeals of Indiana | Opinion 18A-JC-2452 | June 19, 2019 Page 1 of 7

ATTORNEY FOR APPELLANT

Erin L. Berger

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Robert J. Henke

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of: M.W., a Child 

Alleged to be in Need of 

Services,

S.R. (Mother),

Appellant-Respondent,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner

June 19, 2019

Court of Appeals Case No.

18A-JC-2452

Appeal from the 

Vanderburgh Superior Court

The Honorable 

Brett J. Niemeier, Judge

The Honorable 

Renee A. Ferguson, Magistrate

Trial Court Cause No.

82D04-1807-JC-1414

Vaidik, Chief Judge.
Court of Appeals of Indiana | Opinion 18A-JC-2452 | June 19, 2019 Page 2 of 7

Case Summary

[1] S.R. (“Mother”) appeals the trial court’s placement of M.W. (“Child”) after it 

found that Child is a child in need of services (CHINS). Because Child has 

since been placed with Mother and the CHINS case closed, we dismiss this 

appeal as moot.

Facts and Procedural History

[2] Child was born to Mother and Me.W. (“Father”) (collectively, “Parents”) in 

2003. At some point Parents split up and Father was granted custody of Child. 

In July 2018, Father and fifteen-year-old Child lived in Evansville with a 

woman named A.W., who had been named a legal custodian of Child, and

Mother lived in Chicago. On July 23, the Department of Child Services (DCS)

removed Child and filed a CHINS petition alleging that Father was abusing

substances and told DCS workers that he no longer wants Child in his house. 

At the initial hearing, Father denied the allegations. Mother appeared by phone 

and asked if she could come get Child. Judge Pro Tem Jillian Reed said that to 

do that Mother would need to file a petition to modify custody or would need

to undergo an investigation under the Interstate Compact on the Placement of 

Children (ICPC), which provides a way to send children to new homes across 

state lines and allows the receiving state to investigate whether a child can be 

placed in a proposed home. See Bester v. Lake Cty. Office of Family and Children, 

839 N.E.2d 143, 145 n.2 (Ind. 2005). After Judge Reed explained Mother’s 

options, the following colloquy occurred:
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THE COURT: Do you have any objection to [Child] being 

found to be a child in need of services?

[MOTHER]: Yeah, [Child] still needs (indiscernible). And 

I think that [Child] shouldn’t be abused in 

any kinda way or form. [Child is] a little kid.

THE COURT: So you don’t –

[MOTHER]: Yeah, [Child] will need services.

THE COURT: So you don’t have any objection to [Child] 

receiving services and being removed from 

[Father]?

[MOTHER]: (Indiscernible) immediately. (Indiscernible).

Tr. p. 16. Judge Reed set a fact-finding hearing for August 21 and told Mother 

that “because you’re the non-offending parent you are not ordered to appear. It 

is discretionary for you to be there.” Id. at 17. Mother did not appear for the 

fact-finding hearing, and Magistrate Renee A. Ferguson heard evidence against 

Father and adjudicated Child a CHINS.

[3] On September 18, Magistrate Ferguson held a dispositional hearing, and

Mother appeared by phone. She was also represented by counsel, who asked 

the court “to reconsider the finding of probable cause as to Mother, dismiss the 

CHINS case, and place [Child] in Illinois with Mother.” Id. at 24. Mother’s

attorney argued that there is “current case law in Indiana that says that an 

ICPC’s not necessary when we’re dealing with a biological parent, which is the 
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case that we have here.” Id. at 24-25. Magistrate Ferguson asked DCS if there 

were any allegations against Mother in the CHINS petition, and DCS 

responded, “No.” Id. at 25. Magistrate Ferguson denied placement of Child 

with Mother without further investigation, specifically, undergoing the ICPC

process, explaining:

The Court is well aware of the Appellate Court’s position on an 

ICPC and respectfully disagrees with their position. If you read 

31-28-4-1, the enactment of the compact, it – in article 1 purpose 

and policy – clearly states that what the purpose of this is. It 

states clearly – you know, it defines sending agency, receiving 

agency. Placement it clearly defines. Conditions of placement, 

article 3, subsection d, “A child shall not be sent, brought, or 

cause to be sent or brought into a receiving State until 

appropriate public authorities in the receiving State shall notify 

the sending agency in writing to the effect that the proposed 

placement does not appear to be contrary to the interest of the 

child.”

And we go on further in article 10 of ICPC construction and 

severability, “provisions of this compact shall be liberally 

construed to effect the compact’s purposes.” And as previously 

stated, the purpose of the compact is not just to have a child go to 

an approved party or biological party, but also to effect the best 

interest of the child. The Court has no way of knowing what the 

best interests of a child are given that it does not know the 

background of the person receiving the child. So therefore I will 

order that the Vanderburgh County Department of Child 

Services conduct an interstate placement of compact [sic] review 

with the Mother in the State of Illinois.

Id. at 25-26. Magistrate Ferguson awarded wardship of Child to DCS and 

placed Child in an independent-living program. Vanderburgh Superior Court 
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Judge Brett J. Niemeier then issued a written order confirming Magistrate 

Ferguson’s decision.

[4] In October 2018, Mother filed her appeal. In March 2019, after Mother filed 

her appellate brief, DCS filed with the trial court a motion to terminate its

wardship of Child, explaining that Mother had completed the ICPC process 

and that Child was placed with her. The trial court granted the motion,

ordering DCS’s wardship of Child terminated and the CHINS case closed. See 

Order on Wardship Termination, Cause No. 82D04-1807-JC-1414 (Mar. 5, 

2019). 

Discussion and Decision

[5] On appeal, Mother asks us to do two things: (1) set aside the CHINS 

adjudication and (2) place Child with her. As to the first request, Mother is 

precluded from asserting that there is insufficient evidence to support the 

CHINS adjudication when, at the initial hearing, she agreed that Child “will 

need services.” Tr. p. 16; see Wabash Grain, Inc. v. Smith, 700 N.E.2d 234, 237 

(Ind. Ct. App. 1998) (“judicial estoppel prevents a party from asserting a 

position in a legal proceeding inconsistent with one previously asserted”), trans. 

denied. Moreover, without Child being adjudicated a CHINS, the trial court 

could not order the placement Mother sought. That is, Mother wanted Child to 

be placed with her, but the trial court could not have done so without first 

adjudicating Child a CHINS. 
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[6] Mother’s real argument is that the “trial court erred in requiring an approved 

ICPC prior to placing [Child] with [Mother].” Appellant’s Br. p. 18. DCS 

agrees. See Appellee’s Br. p. 22. We do as well. This Court has made clear 

that the ICPC does not apply to placement with an out-of-state parent. In re 

B.L.P., 91 N.E.3d 625, 630 (Ind. Ct. App. 2018) (“we hold as plainly and 

unambiguously as possible: unless and until the statute is amended, the ICPC 

does not apply to placement with an out-of-state parent.”); see also In re D.B., 43 

N.E.3d 599, 604 (Ind. Ct. App. 2015), trans. denied. Here, Magistrate Ferguson

said, “The Court is well aware of the Appellate Court’s position on an ICPC 

and respectfully disagrees with their position.” Tr. p. 25. Then, Judge 

Niemeier issued an order signing off on her decision.

[7] The decisions of this Court are binding upon trial courts. Heber v. Indianapolis 

Metro. Police Dept., 58 N.E.3d 995, 997 (Ind. Ct. App. 2016). We caution 

Magistrate Ferguson and Judge Niemeier that the Indiana Code of Judicial 

Conduct requires judicial officers to uphold the law. See Ind. Judicial Conduct 

Rule 1.1. Vertical stare decisis requires judicial officers to follow this Court’s 

opinions despite their own personal opinions otherwise. See In re C.F., 911 

N.E.2d 657, 658 (Ind. Ct. App. 2009) (“vertical stare decisis is an obligation to 

follow the decisions of superior tribunals”).

[8] That said, Mother completed the ICPC, Child is placed with her, and the 

CHINS case is closed. Since Mother has already gotten what she asks for on 

appeal, this Court cannot provide effective relief upon the issue. See Matter of 

Lawrance, 579 N.E.2d 32, 37 (Ind. 1991) (“a case is deemed moot when no 
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effective relief can be rendered as to the parties before the court”). Therefore, 

Mother’s appeal is dismissed as moot.

[9] Dismissed.

Kirsch, J., and Altice, J., concur.