A TTORNEYS FOR A PPELLANT

Autumn Dusk Halaschak Indiana Dep't of Child Services, LaPorte County Michigan City, In diana

Robert Henke Indiana Dep 't of Child Services , Cent ral Admin. Indianapolis, Indiana A TTORNEY FOR A PPELLEE L A P ORT E C IRCUIT C OURT Nancy L. Gettinger, Magistrate Michigan City, Indiana

A TTORNEY FOR A PPELLEE L A P ORTE C OUNTY CASA David. K. Payne Braje, Nelson & James Michigan City, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 46S04

- 0904

- JV

- 160

I N R E T.S. , A C HILD I N N EED O F S ERVICES

I NDIANA D EPARTMENT OF C HILD S ERVICES , L A P ORTE C OUNTY , Appe l lant ,
v. L A P ORTE C IRCUIT C OURT , AND L A P ORTE C OUNTY CASA Appe l lee s
.

_________________________________ Expedited Appeal from the LaPorte Circuit Court, No. 46C01

- 0804

- JC

- 48

The Honorable Thomas Alevizos , Judge The Honorable Nancy L. Gettinger, Magistrate

_________________________________ On Transfer from the India na Court of Appeals, No. 46A04

- 0902

- JV

- 78

_________________________________

April 17, 2009
Dickson, Justice.

To provide an orderly and expedited procedure for appellate review of certain juvenile court decisions about placement recommendations made by the Indiana Department of Child2

Services ("DCS"), this Court promulgated Indiana Appe l late Rule 14.1, which became effective January 1, 2009. Today's case presents the first appeal r e ceived under this new rule.

We hold that: (1) Rule 14.1 expedited app eals are available to the process of modifying dispositional decrees regarding child placement where a juvenile court does not follow DCS's recommendation , (2) the juvenile court must accept DCS's placement recommendations unless it finds by a preponderanc e of the ev i dence that the recommendation is "unreasonable" or "contrary to the welfare and best interests of the child," (3) a finding by the juvenile court that DCS's re commendation is unreasonable or contrary to the child's welfare and best interest s is reviewed on appeal for clear error , and (4) the juvenile court's placement determination in this case was not clearly erroneous

.

T.S. , a child, was removed from his m other's care because of allegations of physical abuse, found to be a C hild in N eed of S ervices ("CHINS"), and placed with his half

- brother, K.S., in the foster home of K.S.'s paternal grandparents. After se v eral months, DCS requested that T.S. be reunited, but the LaPorte Circuit Court, exercising jurisdiction as a juvenile court , decided it would be contrary to T.S. 's best interests to follow DCS's recommendation and imm ediate ly return him to his m other's care. The juvenile court found that T.S. should remain with the foster parents u n til the end of the school year.

DCS appealed the j uvenile court's decision pursuant to Appellate Rule 14.1, challenging the court's placement order and contending that its recommendations had been neither unreaso nable, based on the facts and circumstances of the case, nor contrary to the welfare or best i nte rests of the child. Both the juvenile court and the C ourt A ppointed S pecial A dvocate ("C A SA") responded in support of the juvenile court's decision. The CASA a l so filed a motion in the Court of Appeals to dismiss the appeal on grounds that the juvenil e court's decision was not within the category of rulings a p pealable under Appellate Rule 14.1. The Court of Appeals held that the juvenile court's ruling was subject to Appellate Rule 14.1 but found that the juvenile court "did not abuse its discretion i n rejecting DCS's placement recommendation." In re T.S. , 902 N.E.2d 332, 333 (Ind. Ct. App. 2009)

. DCS sought transfer, asserting that the Court of Appeals used the i n correct standard of appellate review. We granted transfer.3

This expedited appeal o f the juvenile court's determination thus presents this Court with three issues: (1) whether the juvenile court's order rejecting DCS's placement recommendation is eligible for expedited appeal under Rule 14.1 , ( 2 ) what is the appropriate a p pellate standa rd of review applicable for such expedited appeals, and (3) whether the juvenile court properly r ejected DCS's recommendation to immediately return T.S. to his m other's custody.

As to whether the juvenile court's decision was appealable under Rule 14.1 , we agree with DCS and the Court of Appeals that it was. Rule 14.1 provides that orders entered under I ndiana Code § 31

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- 6.1(f) are eligible for expedited appeal. In this case, DCS requested that the juvenile court modify its earlier dispositional decree "by removing [ T.S. ] from his current fo s ter placement and immediately returning him to Mother's care and custody." In re T.S. , 902 N.E.2d at 334. Section 31

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- 1(2)(C) gives DCS the authority to request such a modification, section 31

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- 3(b ) requires the juvenile court to hold a hearing on such request, and s ection 31

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- 4 provides that section 31

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- 19 "appl[ies] to the preparation and use of a modific a tion report" and that DCS shall prepare a report in such a hearing. What may have ori ginally begun as a periodic review became a modification hearing on the juvenile court's initial order of disp osition.

Here, the juvenile court reached a result contrary to the DCS recommendations, made written findings , and concluded that it "is in [T. S.]'s best interest to remain in current rel ative/foster placement until the end of the 2008

- 2009 school year," and that "[ t ] o immediately r emove him from this home at this time would be disruptive, counterproductive to the progress he has been making and not in his best interests." Appellant's App'x at 23 This was consi s tent with section s 31

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- 6.1(d) and (e), which provide that the court shall enter its dispositional d e cree with written findings and conclusions and specifically state why it is not ac cepting DCS's final recommendations contained in DCS's supplemental report. Section 31

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- 6.1(f), in turn, pr ovides: If the juvenile court enters its findings and decree under subsections (d) and (e), the d epartment may appeal the juvenile court's de cree under any available procedure pr o vided by the Indiana Rules of Trial Procedure or the Indiana Rules of Appellate Procedure to allow any disputes arising under this section to be decided in an expeditious manner.4

Ind. Code § 31

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- 6.1(f) (emphasis added). The juvenile court's placement order therefore constitutes a new dispositional decree , and DCS is thus appealing the juvenile court's placement order entered un der § 31

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- 6.1. R ule 14.1's clear language permits an expedited appeal in cases of disagreement between the juvenile court and DCS under this se c tion.

We next consider the proper standard of review to be applied by appellate courts cons idering such expedited appeals. The function of the juvenile court in the underlying determin ation is specifically delineated by statute:

The juvenile court shall accept each final recommendation of [DCS] . . . unless the j uvenile court finds that a recommendation is: (1) unreasonable, based on the facts and circumstances of the case; or (2) c ontrary to the welfare and best interests of the child. Id. § 31

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- 6.1(d). But the parties disagree regarding the proper standard of appellate review

w hen , as in this case, the juvenile court makes a determination under this statute that is co n trary
t o the fi nal DCS recommendation and DCS initiates an expedited appeal

. DCS argues that the statute specifically provides the applicable standard of review : the trial court is to a ccept DCS's recommendations, unless they are unreasonable or contrary to th e welfare and best interests of the child. The statute presumes DCS's recommendations are correct. Accordingly, on review, deference must be given DCS, and the onus is upon the trial court to show why DCS's recommendations are unreasonable or contrary to the child's welfare and best interests. Given deference to the trial court while on review abrogates the clear intent of the statute.
DCS Pet. to Transfer from Ind. App. R. 14.1 Expedited Appeal at 1.

We agree with the DCS as to the statute's oper ation at the trial court level, but find that appellate review is guided by existing standards. The statute makes clear that the juv e nile court is to accept DCS's recommendations unless the court finds that they are "u n reasonable, based on the facts and c ircumstances of the case," or "contrary to the welfare and best interests of the child." Ind. Code § 31

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- 6.1(d). And the statute requires , in the event "the juvenile court does not accept one (1) or more of [DCS's] final recommend a tions," that the c ourt enter "written findings and conclusions" and "specifically state why the juvenile court is not accepting the final

reco m mendations." Id. § 31

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- 6.1(e). Indiana Code § 31

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- 3 provides that any finding5

by a juvenile court (unrelated to termina tion of parental rights or child delinquency) must be based on a preponderance of the evidence.

We thus agree with DCS that t he statute creates in the juvenile court a presumption of
correctn ess for the DCS final recommendations, relieving DCS of the b urden of initially coming forward with evidence to support its findings and requiring that any resulting decision contrary to the DCS recommendation must be supported by a preponderance of the evidence. Because of the statutory presumption favoring DCS 's final recommendations, j uvenile courts thus lack unfe ttered discretion to make a contrary decision.

But once the juvenile court has appropriately considered the DCS reco m mendation s in light of the relevant evidence and reached a contrary conclusion , the appellate function is g overned by Indiana Trial Rule 52 , which states that "the court on appeal shall not set aside the findings or judgment unless clearly erroneous , and due regard shall be given to the opportunity of the trial court to judge the cred ibility of the witnesses." Ind. T.R. 5 2 (A). As acknowledged by DCS, 1 t his review is implemented on appeal by a two

- tier ed analysis, considering first whether the evidence supports the findings and then whether the findings support the judgment. See Be st er v. Lake County Office of Family and Children , 839 N.E.2d 143, 147 (Ind. 2005) (a p plying this standard to the termin a tion of parental rights). Findings are clearly erroneous when there are no facts or inferences drawn therefrom that support them

. Quill en v. Quillen , 671 N.E.2d 98, 102 (Ind. 1996). A judgment is clearly erroneous if the findings do not support the trial court's conclusions or the conclusions do not support the resulting judgment. Id. The appe l late court should not reweigh the evidence or judge the credibility of witnesses, but should view the ev idence and its reasonable inferences most favorably to the judgment. Dunson v. Dunson , 769 N.E.2d 1120, 1123 (Ind. 2002). It is thus more apt to describe appellate review of determin ations und er this statute as applying "clearly erroneous" rather than "abuse of discretion" as the operative sta n dard.

With regard to the DCS's challenge to the juvenile court's decision in this case, we must thus evaluate whether the court's departure from th e final DCS recommendation was clearly e r-

1 Appellant's Br. at 16

roneous. To support its appellate claim, DCS argues the juvenile court's decision to allow T.S. "to remain in foster care until the end of the school year is not in his best interest and was clearly erroneous as it was not based on the facts and circumstances before the court." Appellant 's Br. at 2. DCS emphasizes evidence tending to support its recommendation and m i nimizes evidence supporting the juvenile court's decision. It does not, however, identify any of t he juv e nile court's individual written findings as lacking in supporting evidence. The essential thrust of DCS's a ppellate contention, as seen in its concluding summary, is that "the trial court has not shown" that DCS's recommendations were unreasonable or contrary to the welfare and best i n terest of the child. Id. at 8.

The juvenile court expres sly conclude d that DCS's recommendations are "contrary to the welfare and best interests of the child and are unreasonable based on the facts and circum stanc es" and then support ed this conclusion with specific factual findings. Appellant's App'x at 22

- 23. The juvenile court discusse d the evidence of T.S.'s relationship with his mother, his school pe r formance, his relationship with his foster parent, his pers onal wishes, the history of physical abuse to T.S. from his mother, the mother's prior substance abuse, the mother's more recent intensive substance abuse treatment, and the advantages of waiting until the end of the current school year to begin reunificat ion with his mother. Id. DCS has not established or a sserted that any of the juvenile court's specific factual findings are unsupported by any facts or inferences . Nor has DCS shown that the findings fail to support the juvenile court's determin ation co ntrary to the DCS recommendations. We decline to find that the juvenile court's determ ination was clearly erroneous.

We affirm the juvenile court.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.