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In re D.J.

Supreme Court of Indiana

February 7, 2017

In Re: The Matter of D.J. and G.J., Children In Need of Services;
v.
Indiana Department of Child Services, Appellee. Gr.J. (Mother) and J.J. (Father) Appellants,

         Appeal from the Allen Superior Court, Nos. 02D08-1507-JC-324 and 02D08-1507-JC-325 The Honorable Charles F. Pratt, Judge The Honorable Lori K. Morgan, Magistrate

         On Petition to Transfer from the Indiana Court of Appeals, No. 02A03-1512-JC-2207

          ATTORNEY FOR APPELLANT GR.J. (MOTHER) Roberta L. Renbarger Renbarger Law Firm Fort Wayne, Indiana.

          ATTORNEY FOR APPELLANT J.J. (FATHER) Gregory L. Fumarolo Fort Wayne, Indiana.

          ATTORNEYS FOR APPELLEE INDIANA DEPARTMENT OF CHILD SERVICES Curtis T. Hill, Jr. Attorney General of Indiana, Robert J. Henke James D. Boyer Deputy Attorneys General Indianapolis, Indiana.

          SLAUGHTER, JUSTICE.

         We have previously held that a tardy notice of appeal forfeits the aggrieved party's right to appeal, but does not deprive a reviewing court of jurisdiction to hear the appeal. Today, we hold that a premature notice of appeal likewise is not fatal to appellate jurisdiction. The two prerequisites for invoking appellate jurisdiction were both present here-an appealable trial-court order and entry of the notice of completion of clerk's record in the chronological case summary.

         The trial court found that Parents' two minor children were "in need of services"-meaning they had been abused or neglected at home and were unlikely to receive the care or treatment they needed without a court's coercive intervention. A child-in-need-of-services (CHINS) determination is not a final judgment. Finality does not occur until the court, after a dispositional hearing, resolves such questions as what specific services are warranted and whether the child should be placed in an alternative living arrangement, either provisionally or permanently. Although the CHINS determination was not final, Parents filed notices of appeal challenging only this interlocutory ruling and not the court's later dispositional order. The Court of Appeals concluded that it lacked jurisdiction and dismissed Parents' appeal. We do not take issue with the Court's decision to dismiss the appeal; it is never error to dismiss a forfeited appeal. The Court's only error was its stated reason for dismissal-lack of jurisdiction.

         Despite Parents' forfeited appeal, we exercise our discretion to decide their case on its merits. Having previously granted transfer in this CHINS matter, we reverse the trial court. The record does not support the court's finding that Parents needed the court's coercive intervention to provide for their Boys' needs at the time of the dispositional hearing.

         Factual and Procedural History

         Gr. J. and J.J. (Parents) have two young sons, D.J. and G.J. (Boys). On the evening of July 16, 2015, Gr.J. (Mother) was bathing the Boys in their home's upstairs bathroom. D.J. was four years old at the time; G.J. was fourteen months. At some point, Mother left them alone in the bathtub for approximately two minutes while she went downstairs to let out the family's dog. When she returned, she found the younger son, G.J., lying face down in the water and immediately "grabbed him out." Mother flipped him over to allow any remaining water to drain from his body and saw "his back was super pale". She carried him to the bedroom and called 9-1-1.

         While waiting for the ambulance to arrive, Mother laid G.J. on the family's bed and attempted "CPR like activity". Although he "wasn't breathing easily or well by any means", he did begin gurgling. As Mother tried to resuscitate him, he defecated on himself. When emergency medical technicians arrived, they cleaned him with a towel and transported him to Lutheran Hospital in Fort Wayne.

         In the early-morning hours of July 17, Detective Renee Davis of the Fort Wayne Police Department and Joseph Sims, a family case worker with the Indiana Department of Child Services (Department), obtained Parents' consent to inspect the family home. Upon entering the house, Sims "almost gagged on the smell of feces and animal feces and urine." He said the smell "smack[ed] you in the face when you walk[ed] in the front door." Likewise, Detective Davis noted, "there was an overwhelming odor when I walked in the house . . . probably an animal definitely urinating." Detective Davis said the odor "made [her] cough" and "kicked [her] asthma up." Sims and Detective Davis also said the house "was in complete disarray" and "very cluttered" with "stuff everywhere."

         During the home inspection, Sims noticed it had no beds for the Boys-no crib for G.J. and no toddler bed for D.J. When asked about the family's sleeping arrangements, J.J. (Father) said they practiced co-sleeping, where all four sleep together in the same bed. After he and Mother researched co-sleeping's pros and cons, they decided to try it and found it helped Mother to breastfeed G.J., to alleviate D.J.'s night terrors, and to help with his autism.

         Based on the bathtub incident, the messy condition of the family home, and the family's co-sleeping practice, the Department removed the Boys from their Parents' care and placed them with their grandparents. On July 21, the Department filed a petition alleging the Boys to be children in need of services under Indiana Code section 31-34-1-1 and began services with the family. Required "home-based" services included parental psychological evaluations, drug screens, parenting curriculum, homemaker services (cleaning the home and ...


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