Court of Appeals of Indiana | Opinion 49A04-1509-JC-1402 | May 19, 2016 Page 1 of 15

ATTORNEY FOR APPELLANT

Danielle L. Gregory

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

David E. Corey

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In re the Matter of:

R.H. (Minor Child)

 Child in Need of Services

 and

T.H. (Mother),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner. 

May 19, 2016

Court of Appeals Case No.

49A04-1509-JC-1402

Appeal from the Marion Superior 

Court

The Honorable Marilyn Moores, 

Judge

The Honorable Gary Chavers, 

Judge Pro-Tem

The Honorable Danielle Gaughan, 

Magistrate

Trial Court Cause No.

49D09-1411-JC-2664

Robb, Judge.
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Case Summary and Issue

[1] R.H. was adjudicated a child in need of services (“CHINS”) shortly after her 

birth. During the CHINS proceedings, the Marion County Department of 

Child Services (“DCS”) filed a motion seeking an order that reasonable efforts 

to reunify R.H. and T.H. (“Mother”) were not required. The juvenile court 

issued such an order on August 17, 2015, and thereafter held a permanency 

hearing on September 15, 2015, and changed the permanency plan for R.H. 

from reunification to adoption. Mother appeals the no reasonable efforts order, 

raising one issue for our review: whether the juvenile court’s order finding that 

reasonable efforts to reunify the family are not required violated her rights 

under Title II of the Americans with Disabilities Act (“ADA”) and Section 504 

of the Rehabilitation Act (“RA Section 504”). Concluding the juvenile court 

did not violate Mother’s rights in finding DCS was not required to make 

reasonable reunification efforts, we affirm.

Facts and Procedural History

[2] Mother gave birth to R.H., her eleventh child, on November 2, 2014.1 None of 

Mother’s children are in her custody. Her parental rights to two of her children 

were involuntarily terminated in 2006 and 2007, respectively, and at least three 

of her children were adopted by others. At the time of R.H.’s birth, a CHINS 

 

1 R.H.’s father, D.C., signed a consent to her adoption during the CHINS proceedings and does not 

participate in this appeal. 
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proceeding was in progress with regard to two of Mother’s other children. 

Mother had no permanent residence, instead residing in various motels with her 

mother and step-father, and she had not been employed since 2007. 

[3] DCS took R.H. into custody immediately after her birth and filed a petition 

alleging R.H. was a CHINS five days later. Following a joint initial and 

detention hearing, the juvenile court determined that “it is contrary to [R.H.’s] 

welfare to remain [in] the care [of Mother]” and that “reasonable efforts have 

been made to prevent or eliminate the need for removal based on the numerous 

services offered [to Mother] in other cases . . . .” Transcript at 8. The juvenile 

court therefore ordered R.H.’s continued placement in foster care with 

supervised parenting time between Mother and R.H. DCS recommended 

Mother complete clinical and parenting assessments and cooperate in homebased case management and therapy. Mother began weekly therapy and 

supervised visits in late 2014 or early 2015. 

[4] The juvenile court held a fact-finding hearing on April 21, 2015, at which 

Mother did not appear. DCS stated at the beginning of the fact-finding hearing 

that it intended to file a motion seeking a reasonable efforts exception. Several 

DCS service providers testified, including family case managers Ashley ButlerPanter and Alice Mann, and Mother’s therapist and visitation supervisor, 

Tammy Bush. Mother had completed the parenting assessment with Bush, 

although Bush testified she “didn’t really get a lot of information out of the 

assessment” due to Mother’s inability to focus and answer questions. Id. at 49. 

Mother was also participating in therapy with Bush, but Bush felt that although 
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continued therapy might help Mother function better in her own life, it would 

not assist Mother in learning to take care of her children. Bush described 

Mother as “very loving towards [R.H.]” during visitation, but expressed 

concerns about Mother’s lack of awareness of safety issues (such as needing to 

be reminded at each visit to use the belt on the changing table when changing 

R.H.’s diapers), her inability to multitask (such as managing R.H. while also 

handling diapers and wipes), and her difficulty judging things such as when and 

how much R.H. needs to eat. Id. at 53-54. Ultimately, Bush did not feel 

continued services would lead to reunification:

[S]he’s been involved with DCS for a very long time and . . . you 

guys have offered her multiple services over the years that 

haven’t been successful because she’s chosen not to follow 

through and she feels that she can do it herself. In some ways 

she’s very street wise. In some ways, she’s very innocent. But 

the bottom line is she’s homeless. She has no money. She has 

no job. She doesn’t want to apply for SSI. She doesn’t want our 

help with her case work. She doesn’t want our help with finding 

a job or filing for SSI.

Id. at 71. At the conclusion of the hearing, the juvenile court adjudicated R.H. 

a CHINS.

[5] On May 7, 2015, DCS filed a Motion for No Reasonable Efforts Exception. 

The motion alleged the parent-child relationship between Mother and two of 

R.H.’s half-siblings had been involuntarily terminated, two of Mother’s children 

had been placed in the custody of their fathers, and six of Mother’s children had 

been adopted. The motion requested the juvenile court find that reasonable 
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efforts to reunify Mother with R.H. were not required pursuant to Indiana Code 

section 31-34-21-5.6(b)(4) and (5). The juvenile court held a hearing on the 

motion over two days in June 2015 and a third day in August 2015. Bush 

testified much as she had at the fact-finding hearing that although Mother was 

“very loving and very kind” during visitations with R.H., she has to be 

reminded of the same things every week, such as using the belt on the changing 

table and feeding R.H. appropriately. Id. at 96. “She tries really hard but it is 

just her knowledge and her skills aren’t good enough to parent safely on her 

own.” Id. at 97. Although Mother had been briefly employed during these 

proceedings, by the final day of the hearing, she was no longer employed, she 

was still moving from place to place, and it remained difficult for service 

providers and case workers to reach her on any given day. Bush did not 

believe, whether services continued for six months or a year, that Mother would 

ever have the skills and judgment to care for R.H. At the conclusion of the 

hearing, the juvenile court took the matter under advisement and set a hearing 

for September that would either be a dispositional hearing or a permanency 

hearing depending on the court’s ruling on DCS’s motion for a reasonable 

efforts exception.

[6] On August 17, 2015, the juvenile court entered an order granting DCS’s 

motion, finding that reasonable efforts to reunify Mother and R.H. are not 

required because

Mother has been repeatedly offered services with regard to [R.H.] 

and with regard to her older children. Services have repeatedly 
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closed unsuccessfully because of Mother’s lack of participation or 

inability to make progress. Additionally, Mother has cognitive 

limitations that inhibit her ability to make progress in the therapy 

she has recently participated in. Mother has been homeless for at 

least two and a half years and has been unemployed since 2007 

until recent employment at McDonald’s. Mother is no longer 

employed and her housing continues to be unstable. Mother has 

resisted the efforts of service providers to assist her with locating 

housing and applying for disability.

Appendix of Appellee at 4. The juvenile court suspended Mother’s parenting 

time and set a permanency hearing for September 15, 2015. 

[7] Following the permanency hearing, the juvenile court issued an order changing 

the permanency plan from reunification to adoption. Mother filed a notice of 

appeal the same day. 

Discussion and Decision

I. Appealable Order

[8] The sole issue raised by Mother on appeal is whether the juvenile court erred in 

granting DCS a reasonable efforts exception. DCS asserts that Mother’s appeal 

is premature and should be dismissed because there is not yet a dispositional 

order.

[9] A CHINS proceeding is initiated when DCS requests the juvenile court

authorize the filing of a petition alleging the child is a CHINS. Ind. Code § 31-

34-9-1. The juvenile court must authorize the filing of a petition if it finds 
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probable cause to believe the child is a CHINS. Ind. Code § 31-34-9-2. Unless 

the parents admit the allegations of the petition, the juvenile court must hold a 

fact-finding hearing within sixty days. Ind. Code § 31-34-11-1. If the court 

finds that a child is a CHINS, it must enter judgment accordingly, order a 

predisposition report, and schedule a dispositional hearing. Ind. Code § 31-34-

11-2. The dispositional hearing is to be held within thirty days of finding the 

child is a CHINS. Ind. Code § 31-34-19-1(a). At the dispositional hearing, the 

court must consider the alternatives for the child’s care, treatment, 

rehabilitation, or placement and the necessity, nature, and extent of the parent’s 

participation. Id. The juvenile court must enter written findings and 

conclusions in its dispositional decree and may, among other things, order

supervision of the child by DCS, place the child in another home, award 

wardship of the child to DCS, or order the child’s parents to complete family 

services recommended by DCS. Ind. Code §§ 31-34-19-10; 31-34-20-1. 

Periodic review and permanency hearings must be conducted. Ind. Code §§ 31-

34-21-2 (review hearings at least every six months); 31-34-21-7 (permanency 

hearings at least every twelve months). Ordinarily, DCS is required to make 

reasonable efforts during the CHINS proceedings to preserve or reunify the 

family. Ind. Code § 31-34-21-5.5. At any phase of a CHINS proceeding, 

however, the juvenile court may make a finding that reasonable efforts to 

reunify a child with her parent are not required. Ind. Code § 31-34-21-5.6. 

[10] We have held that the dispositional decree is the final appealable order from a 

CHINS proceeding because it finally determines the rights of the parties. In re 
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J.V., 875 N.E.2d 395, 399 (Ind. Ct. App. 2007), trans. denied. All the other 

proceedings are “mere preliminary step[s]” to the juvenile court determining at 

a dispositional hearing what is to be done with the children. In re M.R., 452 

N.E.2d 1085, 1088 (Ind. Ct. App. 1983); see also Smith v. Marion Cnty. Dep’t of 

Pub. Welfare, 635 N.E.2d 1144, 1148 (Ind. Ct. App. 1994) (“[T]he time for 

appealing an issue in a CHINS proceeding commences when the dispositional 

decree is entered.”), trans. denied. However, in M.R., we also noted 

“[t]erminology may be confusing. Sometimes what is denominated an ‘order’ 

may really be a final judgment and vice versa. The focus is on what is actually 

done. A rose by any other name is still a rose.” 452 N.E.2d at 1088 (citations 

omitted).

[11] The State is correct that there is no specific dispositional order in the record of 

this case nor does the chronological case summary reflect that a specific 

dispositional hearing had been held at the time the juvenile court found DCS 

was not required to make reasonable efforts to reunify the family. It is unclear 

why this is, as the juvenile court is statutorily required to hold a dispositional 

hearing within thirty days of a CHINS finding. See Ind. Code § 31-34-19-1. 

R.H. was formally adjudicated a CHINS on April 21, 2015.2 The order Mother 

 

2 The juvenile court’s order on the fact-finding hearing set an “Other” hearing for June 1, 2015, a date which 

exceeds thirty days from the finding that R.H. is a CHINS. Appellant’s Appendix at 27. On June 1, 2015, 

the juvenile court held the first day of a three-day hearing on the DCS motion for a reasonable efforts 

exception. At the conclusion of the reasonable efforts hearing in August 2015, the juvenile court said it 

would set either a dispositional or a permanency hearing depending on its ruling on the DCS motion, 

implying no dispositional hearing had yet been held. The order granting DCS’s motion set a permanency 

hearing. And yet, the juvenile court’s order on the permanency hearing states: 
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appeals was issued on August 17, 2015, well over thirty days after the CHINS 

finding with no apparent dispositional hearing having been held. Nonetheless, 

we look to the effect of the orders the juvenile court had entered prior to 

Mother’s notice of appeal. The juvenile court had already determined that 

R.H. was under the wardship of DCS and that she was to be placed in foster 

care. The no reasonable efforts order, in addition to finding that DCS was not 

required to make reasonable efforts to reunify Mother and R.H., suspended 

Mother’s visitation with R.H. The permanency order changed the permanency 

plan from reunification to adoption. In short, whether or not there is an order 

denominated a “dispositional decree” in the record, the juvenile court’s orders 

as a whole serve the purpose of a dispositional decree and further, effectively 

end the relationship between Mother and R.H. and allow DCS to move 

 

The Court having considered the questions as to whether or not it should continue 

jurisdiction and whether the dispositional decree should be modified now finds that it is 

in the children’s [sic] best interest for the Court to continue jurisdiction. The Court 

further determines that the dispositional decree should not be modified.

Appellant’s App. at 109 (emphasis added).
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forward with termination proceedings.3 If Mother is not allowed to appeal this 

issue now, she may never be able to. See Smith, 635 N.E.2d at 1148 (holding 

that because the mother did not appeal the issue of whether she was entitled to 

court-appointed counsel in a CHINS proceeding until following termination 

proceedings, she had waived the issue). Thus, whether or not the court’s 

orders are technically a final judgment, they operate as one, and consequently, 

we will consider Mother’s argument. 

II. Reasonable Efforts Exception

[12] Indiana Code section 31-34-21-5.6 was enacted in response to the Adoption 

Assistance and Child Welfare Act, which authorizes federal subsidies to states 

for their operation of child welfare programs, conditioned on certain 

requirements. G.B. v. Dearborn Cnty. Div. of Family & Children, 754 N.E.2d 1027, 

1030 (Ind. Ct. App. 2001), trans. denied. One of the requirements for a state to 

be eligible for federal payments is that it have a plan which provides that 

 

3

 A petition to terminate the parent-child relationship must allege, among other things, that one of the 

following is true:

(i) The child has been removed from the parent for at least six (6) months under a 

dispositional decree.

(ii) A court has entered a finding under IC 31-34-21-5.6 that reasonable efforts for family 

preservation or reunification are not required, including a description of the court’s finding, the date 

of the finding, and the manner in which the finding was made.

(iii) The child has been removed from the parent and has been under the supervision of a 

local office or probation department for at least fifteen (15) months of the most recent 

twenty-two (22) months, beginning with the date the child is removed from the home as a 

result of the child being allege to be a child in need of services or a delinquent child . . . .

Ind. Code § 31-35-2-4(b)(2)(A) (emphasis added).
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reasonable efforts to reunify a parent and child shall not be required if a court 

has previously determined the parental rights of the parent to a sibling of the 

child should be involuntarily terminated. 42 U.S.C. § 671(a)(15)(D)(iii). 

Accordingly, Indiana Code section 31-34-21-5.6 provides that reasonable efforts 

to reunify a child with the child’s parent are not required if the court finds the 

“parental rights of a parent with respect to a biological or adoptive sibling of a 

child who is a child in need of services have been involuntarily terminated by a 

court order . . . .” Ind. Code § 31-34-21-5.6(b)(4). DCS alleged in its motion 

for a reasonable efforts exception that Mother’s parental rights to two of R.H.’s 

biological half-siblings had been involuntarily terminated, one in 2006 and one 

in 2007.4 The juvenile court determined that, due to the prior terminations, 

reasonable efforts to reunify Mother and R.H. were not required. Mother does 

not dispute the CHINS adjudication was based on sufficient evidence, nor does 

she dispute her history of parental rights’ terminations provides an adequate 

basis for the juvenile court to find that reasonable reunification efforts were not 

required. She argues, however, that the juvenile court’s order relieving DCS of 

the obligation to provide reunification services unlawfully discriminated against 

 

4 The motion alleges that pursuant to Indiana Code sections 31-34-21-5.6(b)(4) and (5) reasonable efforts to 

reunify R.H. with Mother should not be required. Section (b)(5) applies if the court finds the child is an 

abandoned infant and finds, after a written report and recommendation from an appointed guardian ad litem 

or court appointed special advocate, that reasonable efforts to locate the child’s parents or reunify the family 

would not be in the child’s best interests. There is no evidence that R.H. is an abandoned child.
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her because she is entitled to reasonable accommodations for her undiagnosed 

disabilities in the CHINS proceedings.

5

 

[13] Mother bases her claim on the ADA and RA Section 504. Congress enacted 

the ADA to eliminate discrimination against individuals with disabilities and 

create causes of action for qualified people who have faced such discrimination. 

See 42 U.S.C. § 12101(b). The ADA provides, in pertinent part: “[N]o 

qualified individual with a disability shall, by reason of such disability, be excluded 

from participation in or be denied the benefits of the services, programs, or 

activities of a public entity, or be subjected to discrimination by any such 

entity.” 42 U.S.C. § 12132 (emphasis added). The ADA requires that the 

public entity make “reasonable modifications” to allow the qualified person to 

receive services or participate in programs or activities. 28 C.F.R. § 

35.130(b)(7). Similarly, RA Section 504 provides: “No otherwise qualified 

individual with a disability in the United States . . . shall, solely by reason of her or 

his disability, be excluded from participation in, be denied the benefits of, or be 

subjected to discrimination under any program or activity receiving Federal 

financial assistance . . . .” 29 U.S.C. § 794(a) (emphasis added).6 

 

5 DCS argues Mother has waived this claim for failure to raise it to the trial court. It does not appear Mother 

raised this particular issue to the trial court, but given our preference for deciding cases on their merits, Omni 

Ins. Grp. v. Poage, 966 N.E.2d 750, 753 (Ind. Ct. App. 2012), trans. denied, we will consider Mother’s argument 

notwithstanding any waiver. 

6 The Rehabilitation Act is addressed to discrimination against individuals with disabilities in employment 

opportunities, see 29 U.S.C. § 701(b), and defines an individual with a disability as one who has a physical or 

mental impairment “which for such individual constitutes or results in a substantial impediment to 

employment” and who “can benefit in terms of an employment outcome from vocational rehabilitation 
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[14] It is true that “[o]nce [DCS] opts to provide services during the CHINS 

proceedings to assist parents in improving parental skills, the provision of those 

services must be in compliance with the ADA.” Stone v. Daviess Cnty. Div. of 

Children & Family Servs., 656 N.E.2d 824, 830 (Ind. Ct. App. 1995), trans. denied. 

Assuming Mother has a disability

7 and assuming she was otherwise eligible to 

receive services,8she would be entitled to reasonable accommodations in the 

provision of reunification services. In fact, Bush’s testimony supports the 

notion that Mother’s shortcomings were accommodated in these proceedings –

her therapy appointments and visitations were scheduled back-to-back to 

improve her attendance, Bush helped her keep a calendar of appointments 

because she struggles with dates and times, and she was offered assistance in 

obtaining housing, a job, and SSI benefits, but declined. Notably, although 

Mother argues the failure to provide future services violates the ADA and RA 

Section 504, she does not argue the services she actually received failed to 

comply. She therefore essentially acknowledges the services DCS provided 

complied with the statutes. Mother was offered numerous services in her other 

 

services” provided under the act, 29 U.S.C. § 705(20). It is unclear how RA Section 504 applies to the 

provision of reunification services to Mother, and she has made no individualized argument with respect to 

the two statutes she claims have been violated in this case. Likewise, we will not distinguish the two statutes 

in our discussion.

7 Although Mother’s home-based therapist testified that she “felt like [Mother has] some intellectual 

disabilities as well as some mental health issues,” tr. at 49, there was no evidence that Mother has been 

officially diagnosed with a disability. 

8

For purposes of the ADA, a “qualified individual with a disability” is an individual with a disability “who, 

with or without reasonable modifications to rules, policies, or practices, the removal of architectural, 

communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential 

eligibility requirements for the receipt of services or the participation in programs or activities provided by a 

public entity.” 42 U.S.C. § 12131(2) (emphasis added).
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CHINS cases and in this case until the juvenile court granted the reasonable 

efforts exception, yet she remains unable to effectively parent. 

[15] “[T]he ADA was not intended ipso facto to re-write state substantive law.” Id. 

Moreover, “[e]very child is entitled to a minimum level of care regardless of the 

special needs or limited abilities of its parents. In the final analysis, the rights of 

the parents under the Fourteenth Amendment and the ADA must be 

subordinated to the protected rights of the children.” Id. at 831. Here, the 

juvenile court determined pursuant to state statute that DCS was not required 

to provide services to Mother due to her previous history of parental rights’ 

terminations. See id. at 830 (holding there were no grounds for challenging in a 

termination proceeding the alleged failure to comply with the ADA in the 

provision of services because services are not required by the termination 

statute). Neither the DCS request nor the juvenile court’s finding pursuant to 

Indiana Code section 31-34-21-5.6 that services were not required was based on 

Mother’s disability and she was not subjected to discrimination in the 

application of the statute. Any individual with Mother’s history, whether under 

a disability or not, would be treated the same by a juvenile court applying the 

statute.

Conclusion

[16] Mother was not denied services or reasonable accommodations to participate in 

those services because of her disability and the juvenile court did not violate her 
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rights by entering an order finding that DCS was not required to make 

reasonable reunification efforts. 

[17] Affirmed.

Najam, J., and Crone, J., concur.