Court of Appeals of Indiana | Memorandum Decision 87A05-1609-JC-2280 | July 7, 2017 Page 1 of 8

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Mark K. Phillips

Phillips Law, P.C.

Boonville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Abigail R. Recker

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of R.S. (Minor 

Child) Child in Need of Services, 

and D.S. (Mother),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

July 7, 2017

Court of Appeals Case No.

87A05-1609-JC-2280

Appeal from the Warrick Circuit 

Court

The Honorable Greg Granger, 

Judge

Trial Court Cause No.

87C01-1507-JC-126

Bailey, Judge.
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Case Summary

[1] D.S. (“Mother”) and J.S. (“Father”) (collectively, “Parents”) appeal the denial 

of their Indiana Trial Rule 60(B)(8) motion for relief from judgment. They 

present the sole issue of whether the trial court abused its discretion by denying 

the request for clarification of a Child in Need of Services (“CHINS”) order to 

provide that it did not include a finding of parental neglect. We affirm.

Facts and Procedural History

[2] On May 5, 2010, Parents adopted R.S., who was then eleven years old. On 

June 23, 2015, the Indiana Department of Child Services (“DCS”) initiated an 

investigation after receiving a report that R.S. and Mother had been engaged in 

a physical altercation. It was reported that R.S. was found to be in possession 

of an R-rated movie in violation of house rules; Mother verbally confronted 

R.S. and pushed against her cheek; R.S. slapped or hit Mother in the arm more 

than once; and law enforcement was contacted, leading to DCS intervention. 

As of the date of the initial intake report, R.S. had been placed by Mother and 

Father into a private respite care foster home. Family Case Manager Briana 

Hofman (“Hofman”) interviewed Mother, who indicated that she and Father 

were uncertain as to whether R.S. would be allowed to return home. In her 

report, Hofman documented her advisement that “if [R.S.] is not allowed back 

into their home and they have not found suitable placement for [R.S.], this is 

considered abandonment.” (App. Vol. III, pg. 11.)
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[3] On June 26, 2015, Mother contacted Hofman to report that R.S. could not 

remain at the respite care home and Parents were not allowing R.S. to return to 

their home. Hofman reportedly discussed the possibility of services, but Mother 

“was not interested.” (App. Vol. III, pg. 11.) On June 30, 2015, Hofman met 

with both Mother and Father. Hofman documented her identification of the 

following possible services: “crisis intervention, home-based casework, 

homebuilders, in-home therapy, mentors, parent aids, post-adoptive respite 

care, and post-adoptive services,” but additionally reported that “[Parents] are 

declining all services at this time” and had “signed a paper confirming that they 

are not accepting any of the offered services at this time.” (App. Vol. III, pg. 

13.) On July 2, 2015, Mother again contacted Hofman regarding a need for 

placement for R.S. Per Hofman’s intake report, Mother was again offered 

services and again declined. DCS took custody of R.S. 

[4] On July 7, 2015, DCS filed a request for court authorization of a petition 

alleging R.S. to be a CHINS. On the same day, Parents made certain 

evidentiary admissions and the filing of a CHINS petition was authorized. 

Additional parental admissions were entered on July 15, 2015. Parents

obtained counsel and moved for amendment of the CHINS petition. On 

September 30, 2015, the CHINS court granted the motion for amendment, such 

that the word “neglect” was struck from Section 5(a) of the petition and the 

section thereafter provided in relevant part: “the child’s physical or mental 

condition is seriously impaired or seriously endangered as a result of the 

inability or refusal of the child’s parent ...” (App. Vol. II, pg. 15.) Also, in 
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Section 6(d), the word “refused” was replaced with the word “declined,” with 

the section thereafter providing in relevant part: “The parents declined to allow 

the child to return to their home, and were unable to provide an alternative 

placement for the child.” (App. Vol. II, pg. 15.) 

[5] The CHINS order of September 30, 2015 recited that Parents had admitted that 

R.S. was a CHINS as defined by Indiana Code Section 31-34-1-1,1 and had 

admitted material facts including: DCS received a report regarding R.S. on June 

23, 2015; DCS learned that Parents were no longer willing to care for their 

child; R.S. had been informally placed in a foster home; and Parents declined to 

allow R.S. to return to their home after the foster mother indicated she was not 

able to continue caring for R.S. Concluding that “an admission of the 

allegations of the petition [had] been entered,” the court adjudicated R.S. a 

CHINS. (App. Vol. II, pg. 16.) Parents did not appeal the CHINS 

adjudication.

[6] In October of 2015, DCS issued to Mother, who is employed by a child care 

agency, a “Notice of Intent to Substantiate Allegations of Child Abuse or 

Neglect by a Child Care Worker or Licensed Resource Parent.” (App. Vol. III, 

pg. 25.) The Notice advised that, “once the assessment is approved,” Mother 

would be identified as a perpetrator of neglect on the Child Protection Index. 

 

1 Three basic elements are required: that the parent’s actions or inactions have seriously endangered the child, 

that the child’s needs are unmet, and that those needs are unlikely to be met without State coercion. In re 

S.D., 2 N.E.3d 1283, 1287 (Ind. 2014).
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(App. Vol. III, pg. 25.) Mother was advised that she had the right to participate 

in an administrative review of the decision with a DCS administrator not 

involved in making the recommendation to substantiate. Mother participated

in administrative proceedings and requested an administrative appeal hearing.

[7] On December 15, 2015, DCS filed its Notice of Case Disposition and Motion to 

Dismiss; Mother filed a response. The parties disputed whether there had been 

a specific finding of neglect in the Order of Adjudication, upon which the 

substantiation of neglect could be predicated. On March 24, 2016, the 

Administrative Law Judge (“ALJ”) granted summary judgment to DCS. 

Mother filed a petition for judicial review of that decision, but did not perfect 

the appeal due to failure to timely file the record of administrative proceedings.

[8] On June 16, 2016, Parents filed a Motion for Relief from Judgment pursuant to 

Trial Rule 60(B)(8). They asserted that the ALJ interpretation of the Order of 

Adjudication to include a determination of neglect had caused hardship, 

prejudice, and injustice and requested that the court “clarify its order of 

September 30, 2015, to correct the erroneous interpretation by [DCS]” and 

prevent Mother’s inclusion on a state registry so that her employment was not 

negatively impacted. (App. Vol. II, pgs. 37-38.) The trial court conducted a 

hearing on August 23, 2016 and, on August 30, 2016, denied the motion for 

relief. This appeal ensued.
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Discussion and Decision

[9] Trial Rule 60(B)(8) provides in relevant part:

On motion and upon such terms as are just the court may relieve 

a party or his legal representative from a judgment, including a 

judgment by default, for the following reasons: ...

(8) any reason justifying relief from the operation of the 

judgment, other than those reasons set forth in sub-paragraphs 

(1), (2), (3), and (4). . . . A movant filing a motion for reasons (1), 

(2), (3), (4), and (8) must allege a meritorious claim or defense.

“The trial court’s residual powers under subsection (8) may only be invoked 

upon a showing of exceptional circumstances justifying extraordinary relief.” 

Baker & Daniels, LLP v. Coachmen Indus., 924 N.E.2d 130, 140 (Ind. Ct. App. 

2010), trans. denied. The circumstances must be other than those enumerated in 

the preceding subsections, such as mistake, surprise, or excusable neglect. Id. 

In addition to showing sufficient grounds for relief under Trial Rule 60(B), the 

movant must also make a prima facie showing of a meritorious claim. Id. at 

141. The decision of whether to grant or deny the motion is left to the equitable 

discretion of the trial court, and is reviewable only for an abuse of discretion. 

Gipson v. Gipson, 644 N.E.2d 876, 877 (Ind. 1994).

[10] Parents’ motion for relief from judgment asserted that they had suffered 

“tremendous hardship, prejudice and injustice” stemming from the 

administrative substantiation of neglect even though their CHINS admissions 

did not employ the words “neglect” or “refuse.” (App. Vol. II, pg. 32.) At the 
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hearing on the motion for relief, Parents did not present testimony or other 

evidence; rather, argument of counsel was heard. Parents’ counsel requested 

that the trial court “correct obvious error” in the CHINS Order of Adjudication 

to reflect that the adjudication was based not upon neglect but rather upon R.S. 

presenting a danger to herself or others, consistent with Indiana Code Section 

31-34-1-6. (Tr. at 28.) Counsel urged clarification of an order that had been 

“completely misinterpreted and then misused.” (Tr. at 28.) The trial court’s 

order of August 30, 2016 denying Trial Rule 60(B)(8) relief included the 

language: “This Court’s Order on Adjudication September 30, 2015 found that 

RS was a CHINS pursuant to IC 31-34-1-1 as a result of admissions made by 

the parents.” (App. Vol. II, pg. 14.)

[11] On appeal, Parents argue that they did not intend to admit to conduct 

amounting to statutory neglect and that the evidence more appropriately 

suggests the child’s conduct rather than parental conduct precipitated removal. 

Parents contend that DCS should have considered removal on the basis of 

Indiana Code Section 31-34-1-6, providing that a child is a child in need of 

services if “before the child becomes eighteen (18) years of age: (1) the child 

substantially endangers the child’s own health or the health of another 

individual; and (2) the child needs care, treatment, or rehabilitation that: (A) the 

child is not receiving; and (B) is unlikely to be provided or accepted without the 

coercive intervention of the court.” They do not provide a citation to authority 

by which the CHINS court could order DCS to draft its petition on one 

statutory basis as opposed to another. 
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[12] In short, Parents do not deny that they advised DCS that they were no longer 

providing a home for R.S. and lacked alternative living arrangements for her, or 

that they asked DCS to take custody of R.S. Parents have not challenged the 

outcome of the CHINS Order of Adjudication – R.S. spent the remainder of her 

minority years outside the parental home, the State fulfilled the role of provider, 

and the CHINS court issued a child support order to Parents for a zero-dollar

amount. Parents seek, under a trial rule intended to operate in extraordinary 

circumstances where the party also asserts a meritorious defense, not to have 

the Order of Adjudication set aside, but to have the language amended such 

that a different result would likely ensue in administrative proceedings. A 

collateral attack on an underlying judgment – not appealed – and a collateral 

attack on related administrative proceedings – not properly appealed – is not 

addressable by a Trial Rule 60(B)(8) motion. See Gipson (recognizing that 

appellate courts will not permit the bringing of a Trial Rule 60(B)(8) motion as

a substitute for a direct appeal).

Conclusion

[13] Parents have not demonstrated that the trial court abused its discretion in 

denying the Trial Rule 60(B)(8) motion for relief from judgment.

[14] Affirmed. 

Vaidik, C.J., and Robb, J., concur.