text:
    Kostantino S. POURNARAS, a/k/a Gus S. Pournaras, Petitioner-Appellant, v. The PEOPLE of the State of Illinois, Respondent-Appellee.
    Appeal No. 3-17-0051
    Appellate Court of Illinois, Third District.
    Opinion filed November 13, 2018
   JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 Petitioner, Kostantino S. Pournaras, appeals the trial court's denial of his petition to obtain a Firearm Owner's Identification Card (FOID card). Petitioner filed his petition pursuant to the Firearm Owners Identification Card Act (FOID Act). 430 ILCS 65/10(c) (West 2016). He asserts the trial court erred in finding he did not meet all of the qualifications required by the FOID Act due to the trial court's erroneous interpretation of the Federal Gun Control Act. He argues he has had his "civil rights restored" within the meaning of the Gun Control Act so as to allow him to regain the privilege of having a FOID card. We reverse the judgment of the trial court and remand with instructions.

¶ 2 FACTS

¶ 3 In February 2016, petitioner filed a petition to reinstate his privilege to obtain a FOID card. He brought his petition pursuant to the FOID Act which states in relevant part:

"Any person prohibited from * * * acquiring a Firearm Owner's Identification Card under Section 8 of this Act may * * * petition the circuit court in the county where the petitioner resides, * * * and the Director or court may grant such relief if it is established by the applicant to the court's or Director's satisfaction that: * * *
(1) the applicant has not been convicted of a forcible felony under the laws of this State or any other jurisdiction within 20 years of the applicant's application for a Firearm Owner's Identification Card, or at least 20 years have passed since the end of any period of imprisonment imposed in relation to that conviction;
(2) the circumstances regarding a criminal conviction, where applicable, the applicant's criminal history and his reputation are such that the applicant will not be likely to act in a manner dangerous to public safety;
(3) granting relief would not be contrary to the public interest; and
(4) granting relief would not be contrary to federal law." 430 ILCS 65/10(c) (West 2016).

Petitioner conceded he had been convicted of burglary in Kankakee County case No. 94-CF-778 ( 720 ILCS 5/19-1(a) (West 1994) ) and theft in Kankakee County case No. 95-CF-128 ( 720 ILCS 5/16-1(a)(4)(A) (West1994) ). The Kankakee County trial court sentenced petitioner to probation and time served on these offenses. Petitioner completed his sentence and argued he met the conditions under the FOID Act to have his privileges restored.

¶ 4 The trial court held a hearing on the matter. In December 2016, the trial court entered its decision. The trial court found more than 20 years had passed since petitioner's prior felony convictions and he had no felonies since then. 430 ILCS 65/10(c)(1) (West 2016). It found petitioner was gainfully employed, volunteered as a first responder, and took an active role as a husband and father. Petitioner testified that he was "young, dumb, and stupid" when he committed his felony offenses and had since lived a life free of legal troubles. He wanted a FOID card to recreationally hunt and shoot with friends and family. These facts supported the court's finding petitioner would not be a danger to public safety if his firearm privileges were reinstated. Id. § 2. These facts also supported the court's finding that granting petitioner his FOID card privileges would not be against public interest. Id. § 3. However, the court found petitioner did not meet the final requirement that reinstating petitioner's firearm privileges not be contrary to federal law. Id. § 4. The court found granting petitioner's request to obtain a FOID card would be against federal law, namely the Federal Gun Control ban on possession of firearms by a convicted felon. 18 U.S.C. § 922(g)(1) (2012). This appeal followed.

¶ 5 ANALYSIS

¶ 6 On appeal, petitioner's only argument is that he has had his "civil rights" restored within the meaning of the Gun Control Act. Therefore, he has no federal firearm disability, and the trial court erred in denying his petition to obtain a FOID card. Petitioner asserts the trial court erroneously interpreted the Federal Gun Control Act. See 18 U.S.C. § 922(g)(1) (2012) ; 18 U.S.C. § 921(20) (2012). Section 922 provides that it is against federal law for anyone "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year * * * to * * * possess * * * any firearm or ammunition." 18 U.S.C. § 922(g)(1) (2012). Petitioner contends the statute must be read in conjunction with section 921, which provides definitions for section 922. Section 921 sets limitations on a "crime punishable by imprisonment for a term exceeding one year" by stating:

"Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." 18 U.S.C. § 921(20) (2012).

Petitioner maintains probation takes away some civil rights that are restored upon completion of his sentence.

¶ 7 The State disagrees with petitioner's definition of "civil rights" and believes the trial court correctly dismissed the petition. The State argues the correct question is whether petitioner's gun rights are civil rights. Because gun rights are not civil rights, per the State's interpretation of the phrase "civil rights," petitioner has no right to restore. See People v. Heitmann , 2017 IL App (3d) 160527, ¶ 26, 417 Ill.Dec. 488, 88 N.E.3d 129.

¶ 8 Whether petitioner has had his civil rights restored so as not to be barred from owning a firearm under section 922 of the Federal Gun Control Act is an issue of statutory construction. Baumgartner v. Greene County State's Attorney's Office , 2016 IL App (4th) 150035 ¶ 35, 402 Ill.Dec. 733, 52 N.E.3d 654. Issues of statutory construction are questions of law and subject to de novo review. Id. "The cardinal rule of statutory construction is to give effect to the legislative intent of the enactment." Rushton v. O'Malley , 89 Ill. App. 3d 103, 104, 44 Ill.Dec. 406, 411 N.E.2d 528 (1980). "The most reliable indicator of the legislative intent is the language of the statute itself, which must be given its plain and ordinary meaning." Hayashi v. Illinois Department of Financial & Professional Regulation , 2014 IL 116023, ¶ 16, 388 Ill.Dec. 878, 25 N.E.3d 570. Statutes should be interpreted to avoid constructions that create doubts as to their validity. Wade v. City of North Chicago Police Pension Board , 226 Ill. 2d 485, 510, 315 Ill.Dec. 772, 877 N.E.2d 1101 (2007). "[T]his court presumes that the legislature did not intend to create absurd, inconvenient, or unjust results." Coram v. State of Illinois , 2013 IL 113867 ¶ 57, 375 Ill.Dec. 1, 996 N.E.2d 1057.

¶ 9 The Supreme Court in Logan v. United States , 552 U.S. 23, 26, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007), construed the phrase "civil rights restored" used elsewhere in the Gun Control Act. The Court adopted the holding of other courts that the "civil rights" used in the Gun Control Act are "the rights to vote, hold office, and serve on a jury." Id. at 28, 128 S.Ct. 475.

¶ 10 In Illinois, the constitution provides "[a] person convicted of a felony, bribery, perjury or other infamous crime shall be ineligible to hold an office created by this Constitution. Eligibility may be restored as provided by law." Ill. Const. 1970, art XIII, § 1. The right to hold office is restored by statute stating "[a] person convicted of a felony shall be ineligible to hold an office created by the Constitution of this State until the completion of his sentence." 730 ILCS 5/5-55(b) (West 2016). Illinois law requires members of a jury to be "[f]ree from all legal exception." 705 ILCS 305/2(a)(3) (West 2016). Plaintiff contends he could not exercise these civil rights while on probation, which we will address in turn.

¶ 11 The State relies on the holding in Heitmann , but the case here is distinguishable. The petitioner in Heitmann sought to obtain a FOID card but was convicted of domestic violence. Id. ¶ 3. The Gun Control Act treats domestic violence convictions differently than "crimes punishable by imprisonment for a term exceeding one year." See 18 U.S.C. § 922(g)(1) (2012). In the definitions of section 921, the act, in relevant part, states:

"A person shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense ) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms." (Emphasis added.) 18 U.S.C. § 921(a)(33)(B)(ii) (2012).

The applicable definition provides language not present in the definition for "crimes punishable by imprisonment for a term exceeding one year" which we cannot ignore. See Standard Mutual Insurance Co. v. Lay , 2013 IL 114617 ¶ 26, 371 Ill.Dec. 1, 989 N.E.2d 591 ("Each word, clause and sentence of a statute must be given reasonable meaning, if possible, and should not be rendered superfluous.").

¶ 12 Additionally, the trial court in Heitmann sentenced the petitioner to time served and ordered him to pay a fine. Heitmann , 2017 IL App (3d) 160527 ¶ 3, 417 Ill.Dec. 488, 88 N.E.3d 129. The petitioner faced no sentence postconviction. Because the proper inquiry is the status of a petitioner's rights postconviction, and the petitioner never faced a sentence that took away any of his civil rights, he could not be said to have had those rights restored. Id. ¶ 27.

¶ 13 Here, petitioner is not subject to the additional statutory language applied to domestic violence offenders. Additionally, petitioner faced a sentence of probation postconviction.

¶ 14 Petitioner argues he could not have held office while serving his probation. The Illinois constitution provides "[a] person convicted of a felony, bribery, perjury or other infamous crime shall be ineligible to hold an office created by this Constitution. Eligibility may be restored as provided by law." Ill. Const. 1970, art XIII, § 1. That right is automatically reinstated upon operation of a statute that says "[a] person convicted of a felony shall be ineligible to hold an office created by the Constitution of this State until the completion of his sentence." 730 ILCS 5/5-5-5(b) (West 2016).

"A person convicted of a felony is ineligible to hold an office created by the Constitution of the State of Illinois until the completion of his sentence. * * * On completion of sentence of imprisonment or upon discharge from probation, conditional discharge, or periodic imprisonment, or at any time thereafter, all license rights and privileges granted under the authority of Illinois which have been revoked or suspended because of conviction of an offense must be restored." Ill. L. and Prac., Criminal Law, § 1079 (2018).

The Seventh Circuit interpreted the Illinois statute in the same way, finding the right to hold office would be automatically restored upon completion of the defendant's sentence. United States v. Gillaum , 372 F.3d 848, 861 (7th Cir. 2004). Because petitioner would not have been able to hold office while on probation and that right was automatically restored upon successful completion of his sentence, this is a civil right restored within the meaning of the Gun Control Act. See Logan , 552 U.S. at 28, 128 S.Ct. 475.

¶ 15 Petitioner also argues that because Illinois requires a person serving on a jury to be "[f]ree from all legal exception" this means he would have been ineligible to serve on a jury while on probation. See 705 ILCS 305/(a)(3) (West 2016). Petitioner was under sentence until he completed his probation and thus was not free from all legal exception. His completion of probation removed his obstacle to serving on a jury, thus restoring his civil right. Logan , 552 U.S. at 28, 128 S.Ct. 475.

¶ 16 By virtue of completing his sentence, petitioner had his civil rights restored within the meaning of the Gun Control Act. Id. Therefore, petitioner utilized an exception to remove himself from disqualification under federal law. Under a proper reading of the Gun Control Act, we hold petitioner should be allowed to obtain a FOID card because we find he has met all of the statutory requirements. See 430 ILCS 65/10(c) (West 2014).

¶ 17 This result also avoids an absurd application of the law. See Coram , 2013 IL 113867 ¶ 57, 375 Ill.Dec. 1, 996 N.E.2d 1057 ("In the construction of our statutes, this court presumes that the legislature did not intend to create absurd, inconvenient, or unjust results."). To find petitioner never had his civil rights removed so as to prevent them from being restored would disproportionately punish a less serious offender. The State's argument is that if petitioner's crimes were of a sufficient magnitude, to require, say, a sentence of five years' imprisonment, there would be no question whether his civil rights were restored. The proposition fails on its face because a sentence of probation is no less of a sentence or legal obstacle than incarceration, at least with respect to holding office or sitting on a jury.

¶ 18 Assuming no intervening disqualifying events, and in light of the trial courts other findings, we remand with directions for the trial court to direct the Department of the Illinois State Police to issue petitioner a FOID card.

¶ 19 CONCLUSION

¶ 20 For the foregoing reasons, we reverse the judgment of the circuit court of Kankakee County and remand with instructions.

¶ 21 Reversed; cause remanded for further proceedings consistent with this opinion.

Presiding Justice Carter specially concurred, with opinion, joined by Justice Lytton.

¶ 22 PRESIDING JUSTICE CARTER, specially concurring:

¶ 23 Although I concur in the majority decision of the court, I write separately to explain why my concurrence in this case does not conflict with the decision in Heitmann , 2017 IL App (3d) 160527, 417 Ill.Dec. 488, 88 N.E.3d 129. Simply put, there is nothing in the court's decision in the instant case that is contrary to this court's decision in Heitmann . In Heitmann , one of the findings that we made was that gun rights were not the type of civil rights that were contemplated in the Gun Control Act's restoration of civil rights exemption. See Heitmann , 2017 IL App (3d) 160527, ¶ 21, 417 Ill.Dec. 488, 88 N.E.3d 129. The decision in the instant case remains true to that finding. The Gun Control Act makes it unlawful for a person who has been convicted in any court of a misdemeanor crime of domestic violence to possess a firearm. 18 U.S.C. § 922(g)(9) (2012). In the present case, the petitioner, unlike the applicant in Heitmann (see id. ¶ 3 ), was not previously convicted of a crime of domestic violence. Thus, the facts in the instant case are in no way comparable to the facts of Heitmann and dictate that a different result be reached. The petitioner in the instant case lost some of his relevant civil rights and then had those rights restored. The Heitmann applicant did not lose any of his relevant civil rights as a result of his domestic violence sentence and did not, therefore, have any of his relevant civil rights restored. See id. ¶¶ 16-29. For the reasons stated, I respectfully specially concur with the majority's decision.

¶ 24 JUSTICE LYTTON, specially concurring:

¶ 25 I join in Presiding Justice Carter's special concurrence.


source: Caselaw Access Project

license: Public Domain

text:
    IN RE MARRIAGE OF Kyria J. VAN HOVELN, Petitioner-Appellee, and Brenton F. Van Hoveln, Respondent-Appellant.
    NO. 4-18-0112
    Appellate Court of Illinois, Fourth District.
    Filed November 16, 2018
    Gina L. Wood, of Thomson & Weintraub, LLC, of Bloomington, for appellant.
    David H. McCarthy, of McCarthy Law Firm, of Peoria, for appellee.
   JUSTICE DeARMOND delivered the judgment of the court, with opinion.

¶ 1 In September 2014, the trial court entered a judgment of dissolution of marriage between petitioner, Kyria J. Van Hoveln, and respondent, Brenton F. Van Hoveln. In January 2018, the court ordered Brenton to pay $356.33 per week in retroactive maintenance for 207 weeks, totaling $73,760.31.

¶ 2 On appeal, Brenton argues the trial court erred in (1) awarding retroactive maintenance to Kyria and (2) imputing income to Brenton for a time frame subsequent to the termination of his employment. We reverse.

¶ 3 I. BACKGROUND

¶ 4 In September 1993, Kyria and Brenton were married in Watseka, Illinois. Two children were born during the marriage. In August 2012, Kyria filed a petition for dissolution of marriage. At that time, Kyria was 49 years old and employed at Illinois Wesleyan University. Brenton was 42 years old and employed as a Bloomington police officer. In her petition, Kyria asked that Brenton pay a reasonable amount in child support and maintenance.

¶ 5 In April 2013, Kyria filed a petition for temporary relief, asking the trial court to order Brenton to pay a reasonable amount in child support and maintenance. Kyria stated Brenton was "making substantial income" as a police officer. In its June 2013 temporary order, the court granted Kyria exclusive possession of the marital residence, ordered Brenton to pay $469 biweekly for child support, required Brenton to maintain health insurance for Kyria and the children, and reserved the issue of maintenance. The court granted Brenton temporary custody of the youngest child in February 2014.

¶ 6 Brenton filed a petition to modify the temporary order regarding his health-insurance obligation in June 2014. Brenton claimed he had been terminated from his employment as a police officer and lost his benefits, including his ability to provide insurance for himself and the children. Brenton asked that Kyria be required to provide health insurance for him and the children.

¶ 7 In September 2014, the trial court entered the judgment of dissolution of marriage. On the issues concerning child custody, visitation and support, maintenance, and the division of marital and nonmarital property, the court reserved the matter for further negotiation and judicial determination.

¶ 8 In February 2017, the parties entered into a marital settlement agreement, which addressed real estate, vehicles, bank accounts, personal property, retirement accounts, and other assets and liabilities. The agreement indicated the "issue of maintenance remains reserved for further negotiation or judicial determination." The trial court entered an order memorializing the distribution of various assets.

¶ 9 The parties presented evidence on the maintenance issue and submitted a bystander's report in lieu of a verbatim transcript. Kyria testified she has a high school education with "a couple years" of college. She began her employment at Illinois Wesleyan University in 2006 and earned the following wages: $31,612 (2013), $30,483 (2014), $31,379 (2015), and $17,368 (2016). She continued to reside in the marital residence until August 2016 and made the mortgage payments by utilizing all of her savings and incurring credit card debt. In August 2016, she voluntarily left her employment with Illinois Wesleyan University and began residing with her boyfriend on a continuing conjugal basis. At some point, she became employed by Country Chevrolet.

¶ 10 Brenton testified he was employed as a Bloomington police officer from August 1985 until May 2014 and earned the following wages: $72,000 (2012), $95,930 (2013), and $42,017 (January 1, 2014, to May 14, 2014). On May 14, 2014, Brenton lost his job at the police department due to his misconduct, including violating the direction of his superiors and police department policy with which he disagreed. Brenton appealed the termination through a grievance procedure, but the appeal was denied. Thereafter, Brenton received unemployment income of $15,096 for 2014.

¶ 11 In 2014, Brenton started his own tree removal and trimming business. For the year, he had gross income of $9866 and expenses of $19,051. Also in 2014, his income tax return showed a farming loss of $5492 and a farm rental loss of $14,200. In 2015, Brenton's business earned gross income of $85,967 and had expenses totaling $71,225. His 2015 tax return showed a farming loss of $1621 and a farm rental loss of $8760.

¶ 12 In his September 2015 financial affidavit, Brenton stated he earned $6875 per month, including $6500 from his business and $375 from the farm rental. He stated the affidavit was prepared during a busy time of the year and, therefore, his income was higher than other times of the year. In 2016, the business had a net profit of $38,705, and his income tax return showed total income totaling $28,032. He also incurred a farming loss of $4345 and a farm rental loss of $3527.

¶ 13 The bystander's report stated Kyria worked full-time, cooked, cleaned the house, cared for the children, and helped with the yard during the marriage. Brenton worked full-time, worked in the yard, took care of deer raised on the farm, and was involved in the children's activities.

¶ 14 Kyria argued maintenance was appropriate due to the length of the marriage, the income disparity between the parties during the marriage, the initial request for maintenance, and the circumstances surrounding the termination of Brenton's employment.

¶ 15 Brenton argued Kyria never set a hearing for her request for temporary maintenance during the dissolution proceeding and failed to provide evidence showing she had a need for temporary maintenance. Brenton argued the fact she chose not to work during the summers, along with her agreement to be responsible for her own debts and liabilities in the dissolution without assistance, was evidence she did not need temporary maintenance.

Brenton also argued he "was terminated through no fault of his own, applied for and obtained unemployment benefits and, because temporary maintenance was never ordered, did not have an opportunity to seek modification [of] any such obligation."

¶ 16 In January 2018, the trial court entered an order on the issue of maintenance. The court noted Kyria sought maintenance for the time period of August 2012 until August 2016, the latter date when she began residing "with another on a continuing conjugal basis." In analyzing the appropriateness of a maintenance award, the court considered the prior and current versions of section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) ( 750 ILCS 5/504(a) (2016) ). In looking at the income and property of each party, the court found this factor favored an award of maintenance because Brenton "always earned substantially more than" Kyria. The court noted Kyria's "lack of summer employment at least at times during the marriage provided a benefit to the marital estate."

¶ 17 Kyria asked the trial court to impute Brenton's income as a police officer for the period of time after which he lost his position, given the basis for which he lost his job. The court found it "difficult to understand why [Brenton] chose to purposefully disregard the lawful directives of his department as a result of his personal beliefs in what was appropriate," and it was "made even more difficult when his actions included dishonesty in writing traffic tickets." The court found Brenton's income after May 14, 2014, "speaks for itself," and "[i]f the family unit had been intact on that date, the family unit would have suffered the consequences of the loss of employment and [Kyria] would not have had any ability to recoup the loss to the family." The court also stated as follows:

"At the time [Brenton] chose to act inconsistently with police department policy, he was on notice that his marriage was undergoing dissolution and that his spouse was seeking maintenance. He therefore understood that he had potential support obligations to his spouse. He was not free to disregard those support obligations to pursue his own ideas of fairness in carrying out his duties as a police officer. In taking his actions, he not only placed his own livelihood at risk but, without the consent of [Kyria], he also placed her livelihood at risk."

¶ 18 The trial court found Brenton did not voluntarily quit his job as a police officer, as he made genuine attempts to keep his position and he was not attempting to evade a potential support obligation. However, the court found Brenton "did unreasonably fail to take advantage of an employment opportunity," as his actions in violating department policy and in being dishonest were "wholly unreasonable."

"[Brenton] had a clear continuing employment opportunity from which he earned a substantial income and would continue to earn a substantial income even if his income declined to the 2012 level. In order to realize this continuing opportunity, [Brenton] merely had to follow the lawful directives of his superiors and to otherwise conduct himself in accordance with the law. To not take such ordinary and basic actions is certainly unreasonable. As such the imputation of income is appropriate. Income at that level in comparison with [Kyria's] income throughout the marriage supports an award of maintenance."

¶ 19 The trial court found several factors irrelevant or insignificant. In considering the factor as to the time necessary to enable Kyria to acquire appropriate education, training, and employment and whether Kyria was able to support herself through appropriate employment, the court noted Kyria benefited during the marriage from Brenton's support in paying for her needs. During the time period she sought maintenance, Kyria was able to pay her bills and meet her needs but only by exhausting her savings and incurring credit card debt. As this was inconsistent with the standard of living during the marriage, the court found this factor favored an award of maintenance.

¶ 20 In considering the factor related to the parties' standard of living during the marriage, the trial court found their standard of living "was not lavish" and both parties had employment. The court found "the standard of living of the parties did include developing * * * savings, paying their bills and not incurring a great deal of debt" and, during the relevant time period, "this particular aspect of the parties' standard of living diminished for [Kyria]."

¶ 21 The trial court found the marriage was of "significant duration" and "of such length that each party to the marriage ought to reasonably believe that they owe an obligation to their partner for their care and support." The court also found "[b]oth parties are of sound mind and body" and the tax consequences were not significant in the maintenance determination.

¶ 22 In analyzing the current version of the Dissolution Act, the trial court considered the financial obligations imposed on the parties as a result of the dissolution. The court noted the marital settlement agreement required each party to be responsible for their own liabilities. When considering Kyria's obligation to pay her credit card debt incurred to meet her needs and without a supporting contribution from Brenton, the court found it would allow Brenton "to avoid his obligation to maintain his spouse of many years in a manner consistent with the standard of living established during the marriage."

¶ 23 The current version of the statute also requires the trial court to consider "any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought[.]" 750 ILCS 5/504(a)(5) (West 2016). The court noted, during the relevant time frame, Brenton did suffer a loss of employment. While it was possible that Brenton's "choices that resulted in this loss of employment may impact his ability to regain employment as a police officer," the court stated "he did not otherwise suffer any impairment to his earning capacity." The court did not find any impairment of Brenton's earning capacity during the relevant time that would diminish his maintenance responsibilities.

¶ 24 After considering the relevant factors, the trial court found maintenance was appropriate for the time period in question. The court calculated the average of Brenton's weekly gross income from 2012 through 2014 was $1808.23 and Kyria's weekly gross income from 2012 through 2016 was $611.61. Under the guidelines of section 504, the court ordered Brenton to pay Kyria $356.33 per week for the time period of August 10, 2012, to August 1, 2016. With 207 weeks during the relevant time period, the court calculated the total owed by Brenton to be $73,760.31. The court entered judgment in favor of Kyria and against Brenton. This appeal followed.

¶ 25 II. ANALYSIS

¶ 26 Brenton argues the trial court abused its discretion by awarding retroactive maintenance under the Dissolution Act. We agree.

¶ 27 Section 504(a) of the Dissolution Act ( 750 ILCS 5/504(a) (West 2016) ) provides that in a dissolution proceeding, the trial court "may grant" maintenance in an amount and for a period of time "as the court deems just." When considering whether a maintenance award is appropriate, section 504(a) sets forth 14 factors for the trial court to consider, including:

"(1) the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance as well as all financial obligations imposed on the parties as a result of the dissolution of marriage;
(2) the needs of each party;
(3) the realistic present and future earning capacity of each party;
(4) any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having forgone or delayed education, training, employment, or career opportunities due to the marriage;
(5) any impairment of the realistic present or future earning capacity of the party against whom maintenance is sought;
(6) the time necessary to enable the party seeking maintenance to acquire appropriate education, training, and employment, and whether that party is able to support himself or herself through appropriate employment or any parental responsibility arrangements and its effect on the party seeking employment;
(7) the standard of living established during the marriage;
(8) the duration of the marriage;
(9) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and the needs of each of the parties;
(10) all sources of public and private income including, without limitation, disability and retirement income;
(11) the tax consequences of the property division upon the respective economic circumstances of the parties;
(12) contributions and services by the party seeking maintenance to the education, training, career or career potential, or license of the other spouse;
(13) any valid agreement of the parties; and
(14) any other factor that the court expressly finds to be just and equitable." 750 ILCS 5/504(a) (West 2016).

¶ 28 When determining whether a maintenance award is appropriate, the trial court shall state its reasoning and make specific findings of fact referencing each relevant factor from section 504(a). 750 ILCS 5/504(b-2)(1) (West 2016). No one factor is dispositive as to whether the court should award maintenance. In re Marriage of Harlow , 251 Ill. App. 3d 152, 157, 190 Ill.Dec. 476, 621 N.E.2d 929, 934 (1993). If the court concludes maintenance is appropriate, the court shall then determine the duration and amount of maintenance according to section 504(b-1) of the Dissolution Act. 750 ILCS 5/504(b-1) (West 2016).

¶ 29 Both the amount and duration of a maintenance award lie within the sound discretion of the trial court. In re Marriage of Donovan , 361 Ill. App. 3d 1059, 1062, 297 Ill.Dec. 823, 838 N.E.2d 310, 314 (2005). We will not reverse a trial court's maintenance award on appeal absent an abuse of discretion. In re Marriage of Culp , 341 Ill. App. 3d 390, 394, 275 Ill.Dec. 221, 792 N.E.2d 452, 456 (2003).

¶ 30 Under section 504 of the Dissolution Act ( 750 ILCS 5/504 (West 2016) ), there are four common types of maintenance: permanent maintenance, rehabilitative maintenance for a fixed term, rehabilitative maintenance with a review date, and maintenance in gross.

In re Marriage of Shen , 2015 IL App (1st) 130733, ¶ 84, 394 Ill.Dec. 209, 35 N.E.3d 1178. The distinguishing characteristic of maintenance in gross from the other forms of maintenance is the definite amount and vesting date. Shen , 2015 IL App (1st) 130733, ¶ 86, 394 Ill.Dec. 209, 35 N.E.3d 1178. Rehabilitative maintenance is intended to assist and encourage dependent spouses to become financially independent. In re Marriage of Henzler , 134 Ill. App. 3d 318, 322, 89 Ill.Dec. 261, 480 N.E.2d 147, 149 (1985). We noted in Henzler it was inherent in the concept of rehabilitative maintenance that the recipient was "under an affirmative obligation to seek appropriate training and skills to become financially independent in the future." Henzler , 134 Ill. App. 3d at 322, 89 Ill.Dec. 261, 480 N.E.2d 147. Permanent maintenance, however, is "appropriate where it is evident that the recipient spouse is either unemployable or employable only at an income that is substantially lower than the previous standard of living." In re Marriage of Micheli , 2014 IL App (2d) 121245, ¶ 18, 383 Ill.Dec. 734, 15 N.E.3d 512. Maintenance in gross is a form of maintenance that is "a nonmodifiable sum certain to be received by the former spouse regardless of changes in circumstances," which includes remarriage or cohabitation. In re Marriage of Freeman , 106 Ill. 2d 290, 298, 88 Ill.Dec. 11, 478 N.E.2d 326, 329 (1985). In addition, periodic maintenance, typically a specified amount payable over a period of time in regular intervals, is the preferred form of maintenance, except under " 'exceptional circumstances.' " In re Marriage of Bohnsack , 2012 IL App (2d) 110250, ¶ 10, 360 Ill.Dec. 199, 968 N.E.2d 692 (quoting Lamp v. Lamp , 81 Ill. 2d 364, 374, 43 Ill.Dec. 31, 410 N.E.2d 31, 35 (1980) ).

¶ 31 In the case sub judice , the trial court never specified the nature of maintenance it was awarding, nor did Kyria identify the form of maintenance being sought. During the course of the proceedings, she did not seek a hearing on temporary maintenance, which could have been decided summarily by the court based on affidavits and exhibits ( 750 ILCS 5/501 (West 2016) ). In addition, neither party claims the award was temporary maintenance, which, by its very nature, would not be appealable. See In re Marriage of Dunseth , 260 Ill. App. 3d 816, 827, 198 Ill.Dec. 620, 633 N.E.2d 82, 91-92 (1994).

¶ 32 At the outset of the proceedings, Kyria was already gainfully employed, albeit at a salary substantially lower than that of Brenton before he was involuntarily terminated from his position with the Bloomington Police Department. When she filed her petition for dissolution in August 2012, she sought custody of the children, child support, and unspecified maintenance. Her April 2013 petition for temporary relief alleged the children lived with her and, as a result, she should be awarded exclusive possession of the marital residence, along with a reasonable amount for child support and maintenance. Pursuant to a June 2013 order, she was awarded the marital residence and $469 biweekly for children support, with maintenance having been reserved. By the time an agreed temporary order was entered at the end of February 2014, one child had attained the age of 18 and, according to Brenton in previous pleadings, expressed a desire to live with him. Also, the younger child (16 years old) had already moved in with Brenton, and temporary child support was terminated. Again, maintenance was reserved. Throughout the more than five years this case was pending, the issue of maintenance was reserved repeatedly.

¶ 33 By the time of the final hearing, which addressed only maintenance, there were no pleadings filed seeking retroactive maintenance, and it appears from the bystander's report there was no mention of retroactive maintenance by the parties. Instead, according to the evidence, without any discussion of the possibility of retroactive maintenance being sought by Kyria or awarded by the trial court, the parties divided all marital assets by agreement or pursuant to the court's findings, including the marital residence, real-estate holdings, and an "equalization payment" to Kyria of $41,568.90 "in order to equalize the distribution of real property." The parties also disposed of livestock, for which Brenton had been solely responsible since initiation of these proceedings, with the proceeds to be divided evenly.

¶ 34 In addition, there had been a substantial change in the circumstances of both parties from the time the petition was filed. Brenton had been terminated from a long-term position with the police department, where he was months away from being eligible for a full pension. According to the arbitrator's award letter denying his grievance for discharge, Brenton was an 18½-year veteran of the department and was four months from eligibility for a full pension. According to the bystander's report and the trial court's January 24, 2018, order, Brenton was employed from August 20, 1985, to May 14, 2014, which would make him a 29½-year veteran of the department. At oral argument, counsel indicated Brenton had worked at the department for approximately 18 or 19 years. Brenton's income went from a high of $95,930 in 2013, with an unspecified amount of overtime, to a 2016 total income of $28,032 from his tree removal and trimming business. In 2014, he earned $42,017 from January until his termination in May, along with $15,096 in unemployment compensation for the rest of the year. For the rest of 2014 and 2015, he recorded net losses for the new business.

¶ 35 Kyria, on the other hand, had been gainfully employed at Illinois Wesleyan University in Bloomington since 2006 where, for the three years prior to August 2016, she earned an average of $31,157. In August 2016, she voluntarily quit her job to move in with her new boyfriend. During the marriage, she did not work over the summer months and that continued during the pendency of these proceedings as well. More importantly, at no time during the 27 different hearings where maintenance continued to be reserved did Kyria assert a need for financial assistance pending the outcome. Thus, the award would not be considered temporary maintenance intended to assist her with her finances during the life of the case.

¶ 36 At the final hearing in December 2017, Kyria sought maintenance from August 2012 to August 2016. It appears the parties agreed she could no long receive maintenance thereafter due to her cohabitation, since that was raised by Kyria's own counsel. This is significant to our analysis since it would therefore appear neither the parties nor the court were considering the requested payments to be "maintenance in gross." See Freeman , 106 Ill. 2d at 299, 88 Ill.Dec. 11, 478 N.E.2d 326.

¶ 37 The bystander's report stated Kyria "did not present any evidence showing that she incurred debt during this time [the period for which maintenance was sought] or that bills were unpaid. When pressed, she made a general claim that she incurred credit card debt that she has since paid off." Earlier in the report, it indicates she said she utilized all her savings and incurred credit card debt "in order to meet her needs." However, she was not pressed and did not offer any specific amounts or documentation to support her claim. The problem with her assertion is that it is not supported by the record. None of her financial affidavits reflect a drastic change in any reported savings accounts and her credit card debt remains a constant $150 per month throughout. It would thus appear the trial court accepted Kyria's unsubstantiated representation that she "utilized all her savings and incurred credit card debt" to pay her regular needs and expenses as part of its rationale for awarding maintenance.

¶ 38 The award cannot be considered rehabilitative maintenance either since Kyria was gainfully employed and voluntarily chose to terminate that employment to cohabit with her boyfriend. Kyria did not claim a need for financial assistance to obtain some sort of employable skill, and according to all the evidence before the trial court at the time maintenance was sought, she was already financially independent. She could afford to pay all her bills, had no outstanding debts unpaid, and was apparently able to quit her job of 10 years. Her W-2 form from Country Chevrolet in Bourbonnais, Illinois, where she began working after moving to live with her boyfriend, showed a gross income of $19,380 for tax year 2016, which would be reflective of the five months from August through December. According to the order, Kyria's gross income for the first half of 2016 was $17,368 from Illinois Wesleyan University, so she was not only gainfully employed but her earnings now exceeded what she made during the marriage.

¶ 39 The trial court's analysis included the necessary consideration of the factors listed in both the previous and current version of section 504(a). When considering the first factor, "the income and property of each party, including marital property apportioned and non-marital property assigned to the party seeking maintenance" ( 750 ILCS 5/504(a)(1) (West 2016) ), the court imputed as income to Brenton his pretermination income as a police officer, although by the time of the hearing, he was earning even less than Kyria.

¶ 40 "For the purpose of imputing income, a court must find one of the following: (1) the payor has become voluntarily unemployed, (2) the payor is attempting to evade a support obligation, or (3) the payor has unreasonably failed to take advantage of an employment opportunity." In re Marriage of Blume , 2016 IL App (3d) 140276, ¶ 30, 405 Ill.Dec. 842, 59 N.E.3d 135. "The amount of income imputed by the court must be supported by evidence showing that it is commensurate with the supporting parent's skills and experience." In re Marriage of Liszka , 2016 IL App (3d) 150238, ¶ 46, 413 Ill.Dec. 193, 77 N.E.3d 1000. "When calculating the amount of income to impute, the trial court may consider the supporting parent's income from previous employment. [Citations.] However, a court should not base its income calculation on outdated data that no longer reflect prospective income." Liszka , 2016 IL App (3d) 150238, ¶ 47, 413 Ill.Dec. 193, 77 N.E.3d 1000.

¶ 41 Citing In re Marriage of Ruvola , 2017 IL App (2d) 160737, 415 Ill.Dec. 763, 83 N.E.2d 19, and Blume , 2016 IL App (3d) 140276, 405 Ill.Dec. 842, 59 N.E.3d 135, the trial court concluded Brenton did not meet either of the first two bases for imputing income, i.e. , voluntary unemployment or attempting to evade a support obligation, but he did meet the third-unreasonably failing to take advantage of an employment opportunity.

¶ 42 Ruvola involved a degreed chemist, who once earned $125,000 per year but was sporadically employed at everything from a part-time tennis professional to a salad maker at a pizzeria by the time he petitioned for divorce. Ruvola , 2017 IL App (2d) 160737, ¶¶ 25, 35, 415 Ill.Dec. 763, 83 N.E.3d 19. The court ultimately imputed income to him as part of his request for maintenance from the respondent, finding he was voluntarily underemployed. Ruvola , 2017 IL App (2d) 160737, ¶ 38, 415 Ill.Dec. 763, 83 N.E.3d 19. This is the reverse of the situation before us. In Blume , 2016 IL App (3d) 140276, ¶ 31, 405 Ill.Dec. 842, 59 N.E.3d 135, a farmer was found to have voluntarily discontinued farming in light of the divorce to evade his support obligation. No one contended, nor did the trial court find in this case, Brenton voluntarily terminated his employment. Although the court acknowledged Brenton "made genuine efforts to try to keep his position in appealing the termination," it found Brenton's "actions reflect his disagreement with the policies of the police department and without regard to the financial wellbeing of himself or his spouse."

¶ 43 A trial court's decision whether to impute income is reviewable under the abuse of discretion standard. See In re Marriage of Lichtenauer , 408 Ill. App. 3d 1075, 1091, 348 Ill.Dec. 812, 945 N.E.2d 119, 132 (2011). In In re Marriage of Gosney , 394 Ill. App. 3d 1073, 1078, 334 Ill.Dec. 199, 916 N.E.2d 614, 619 (2009), the trial court found the petitioner was involuntarily unemployed when the evidence revealed he had been forced out as partner of an investment management company when he refused to agree to "unfair and oppressive negotiation tactics" in which the other partners engaged as part of a proposed buyout. The petitioner was then asked to leave the firm and terminated. Gosney , 394 Ill. App. 3d at 1078, 334 Ill.Dec. 199, 916 N.E.2d 614. Although Gosney involved imputing income for child support purposes, the analysis of the three factors mentioned above are the same. The Third District found the imputation of income to the petitioner was an abuse of discretion since he, like Brenton here, did not meet either of the first two factors and was involuntarily unemployed. Gosney , 394 Ill. App. 3d at 1077-78, 334 Ill.Dec. 199, 916 N.E.2d 614. When he disagreed with what he considered "unfair and oppressive negotiation tactics," he was forced out. Gosney , 394 Ill. App. 3d at 1078, 334 Ill.Dec. 199, 916 N.E.2d 614.

¶ 44 Here, Brenton disagreed with an apparent departmental policy regarding the mandatory issuance of traffic tickets for vehicle accidents and equated it to being required to maintain a "quota." He disagreed with the principle and refused to comply, resulting in a reprimand and his ultimate termination. The fact that Brenton was less than four months away from his eligibility for a full pension would tend to indicate how strongly he disagreed with the practice and not that he was intending to lose his job. In Liszka , 2016 IL App (3d) 150238, ¶ 47, 413 Ill.Dec. 193, 77 N.E.3d 1000, the appellate court cited Gosney as support for finding "[a] trial court may not impute income in the amount of an obligor's prior income where the obligor has been involuntarily terminated from his prior employment and there is no evidence that a job with the same salary is available to him." The court found an abuse of discretion when, after involuntary termination, there was no evidence the payor had similar employment available to him or could earn similar amounts at another job based on his qualifications. Liszka , 2016 IL App (3d) 150238, ¶ 49, 413 Ill.Dec. 193, 77 N.E.3d 1000. "Evidence that the obligor once earned a certain salary and presumably could again is an insufficient basis upon which to impute income." Liszka , 2016 IL App (3d) 150238, ¶ 47, 413 Ill.Dec. 193, 77 N.E.3d 1000.

¶ 45 Here, no evidence was presented to indicate Brenton had similar law enforcement jobs available to him or that he had any likelihood of being so employed after having been terminated from the police department. Further, we find the third factor-unreasonably failing to take advantage of an employment opportunity-applies to circumstances arising after the loss of the employment from which the trial court seeks to impute income. Otherwise, there is no distinction between the first and third factors. The court here concluded Brenton unreasonably failed to take advantage of an employment opportunity by failing to retain his previous employment. Gosney , Liszka , and even the cases cited by the court all involved the loss of employment as a condition precedent to assessing whether the payor was failing to take advantage of future employment opportunities. Having concluded he was neither voluntarily unemployed nor attempting to evade payment of maintenance, it was an abuse of discretion for the court to conclude Brenton's involuntary discharge from the police department during the pendency of the divorce constituted an unreasonable failure to take advantage of an employment opportunity as that factor is intended. As a result, the court's factual findings imputing income as a police officer for any period of time after Brenton's termination was against the manifest weight of the evidence.

¶ 46 Compounding the error in imputing income, the trial court awarded maintenance well after the parties entered into the marital settlement agreement. In In re Marriage of Heroy , 385 Ill. App. 3d 640, 660, 324 Ill.Dec. 310, 895 N.E.2d 1025, 1045 (2008), the First District noted a retroactive temporary maintenance "award should have been funded from the marital estate prior to the property division, rather than from [the respondent's] postdivision share." In discussing maintenance and the distribution of marital property, the Third District stated as follows:

"[T]he issue of maintenance is interrelated with the distribution of the marital property [citation]. While recognizing that maintenance and distribution of property are considered together, they are clearly not the same thing. Maintenance is a sum of money payable to a spouse for his or her support. It is not the same thing as a distribution of property. We have found no case that stands for the proposition that maintenance can be used to pay a portion of the marital debt. In fixing a maintenance award, the court should consider the amount of property that it is distributing to each party. Nonetheless, maintenance and property distribution are two separate concepts which cannot be interchanged as the trial court has done here. [Citations.] While the award may have been proper had it been characterized strictly as a property settlement, we find that it was not proper as maintenance where the record shows that the wife's financial condition did not warrant any maintenance." In re Marriage of Lees , 224 Ill. App. 3d 691, 694-95, 167 Ill.Dec. 135, 587 N.E.2d 17, 20 (1992).

¶ 47 Here, the evidence failed to indicate Kyria was entitled to any of the common forms of maintenance for the period of time for which it was awarded. Instead, the trial court's award of maintenance amounted to a redistribution of property after the parties had already agreed to the distribution of marital property. This was improper and must be reversed.

¶ 48 III. CONCLUSION

¶ 49 For the reasons stated, we reverse the trial court's judgment.

¶ 50 Reversed.

Justices Steigmann and Knecht concurred in the judgment and opinion.


text:
    Amy K. METZ, AS Mother and NEXT FRIEND OF Kiara K. METZ, an Incapacitated Minor, Appellant-Defendant, v. SAINT JOSEPH REGIONAL MEDICAL CENTER-PLYMOUTH CAMPUS, INC.; Saint Joseph Regional Medical Center, Inc.; Joel Schumacher, M.D.; and Plymouth Family and Internal Medicine, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CT-325
    Court of Appeals of Indiana.
    FILED November 15, 2018 Publication Ordered January 9, 2019
   Case Summary

[1] Amy Metz, as mother and next friend of Kiara Metz, an incapacitated minor, appeals the trial court's dismissal of her complaint against the Saint Joseph Regional Medical Center-Plymouth Campus, Inc.; Saint Joseph Regional Medical Center, Inc.; Joel Schumacher, M.D.; and Plymouth Family and Internal Medicine (collectively, "Medical Providers"). We affirm.

Issue

[2] Metz raises several issues, which we consolidate and restate as whether the trial court properly determined that the Indiana Medical Malpractice Act governs Metz's claims against Medical Providers.

Facts

[3] In May 2017, Metz filed a complaint against Medical Providers alleging negligence and requesting punitive damages. Metz alleged that her daughter, Kiara, was born on August 6, 2004, at Saint Joseph Regional Medical Center-Plymouth Campus ("Plymouth Hospital") and that Dr. Schumacher was engaged to provide services, "including but not limited to the timely review of TSH Test Results regarding infants born at the Plymouth Hospital, and the timely communication of those results to the appropriate hospital office and to the parents of the said newborn infants." Appellants' App. Vol. II pp. 18-19. Metz alleged that a blood sample was obtained from Kiara by the delivery team and was sent to the Indiana University Newborn Screening Laboratory ("Laboratory"). The Laboratory issued a written report on August 16, 2004, which it sent to Plymouth Hospital and Dr. Schumacher. The written report provided that Kiara's "TSH" was "abnormal borderline." Id. at 29. The report noted: "The newborn screen was considered abnormal and a recollection of an additional blood spot specimen is necessary to further evaluate this infant." Id. Medical Providers did not report the test results to Metz or take action to retest Kiara. Metz alleges that she called Dr. Schumacher's office on August 20, 2004, regarding the test results and was informed by office staff that the results were normal.

[4] On August 31, 2004, the Laboratory again sent a letter to the Plymouth Hospital and Dr. Schumacher noting that it had not received "follow-up ... as is required by ISDOH ...." Id. at 30. Medical Providers again did not contact Metz. On September 25, 2004, Metz received a copy of a letter from the Laboratory to Dr. Schumacher dated September 21, 2004. Kiara's pediatrician, Dr. Robert Kolbe, then requested copies of the records from Dr. Schumacher and obtained additional testing of Kiara, which demonstrated that Kiara has hypothyroidism. According to Metz, "if hypothyroidism is identified within two to three weeks of a child's birth, damaging developmental effects of hypothyroidism can be prevented by the administration of manufactured medicines containing substances that provide the newborn with substitutes for the inadequate production of TSH by the infant's thyroid gland." Id. at 21. Metz alleged that Kiara has suffered "numerous irreversible consequences." Id. at 25.

[5] Medical Providers filed a motion to dismiss pursuant to Indiana Trial Rule 12(B)(1) and Indiana Trial Rule 12(B)(6). Medical Providers argued that the matter was barred by the statute of limitations set out in the Indiana Medical Malpractice Act ("MMA"). Medical Providers argued that the alleged acts and omissions constitute claims of medical negligence rather than general negligence, and thus, the MMA applies. According to Medical Providers, Metz failed to file a timely proposed complaint with the medical review panel and failed to file a claim before Kiara's eighth birthday as required by the MMA.

[6] Metz responded by arguing that the MMA did not apply because Medical Providers "simply failed to perform an administrative duty to read and report the critical information in those letters." Id. at 76. Metz contended that the "MMA cannot, by any stretch of its statutory language, be interpreted to include the failure to perform a purely administrative act." Id. According to Metz, her claims "sound[ ] in common law negligence against the [Medical Providers]." Id. at 80.

[7] In January 2018, the trial court granted Medical Providers' motion to dismiss pursuant to both Trial Rule 12(B)(1) and Trial Rule 12(B)(6) as follows:

11. [ ] [T]his court found the discursive analysis as set out in Terry v. Community Health Network , 17 N.E.3d 389 (Ind. Ct. App. 2014) and Robertson v. Anonymous Clinic , 63 N.E.3d 349 (Ind. Ct. App. 2016) to be most helpful. Both cases emphasized a focus on "whether the claim is based on the provider's behavior or practices while acting in his professional capacity as a provider of medical services." Terry , [17 N.E.3d] at 393 (citing Madison Ctr., Inc., v. R.R.K. , 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006). Both cases then emphasized that the court's true focus must be on whether the issues are capable of resolution without referring to the medical standard of care; if so, the claims are not subject to the MMA. Robertson , [63 N.E.3d] at 360.
12. With that analysis in mind, the focus shifts to the actual text of the allegations in Plaintiff's Complaint and the contents of the designated evidence regarding the actual acts of alleged negligence. As discerned by this court, the acts of alleged negligence asserted by Plaintiff are as follows: A. Neither Dr. Schumacher nor any other named Defendant reported the abnormal TSH Test Results information to Plaintiff or anyone associated with Kiara's parents; B. Neither Dr. Schumacher nor any other named Defendant caused Kiara to be retested as required by the August 16 report; C. On or about August 20, 2004, Plaintiff was advised by a staff person of Dr. Schumacher that the results of Kiara's infant blood screen were all normal; D. Defendants failed to provide Plaintiff with a copy of or advise her of the contents of an August 31, 2004 letter from the IU Lab advising Defendants that the Lab had yet to receive a follow up blood sample as requested; E. Plaintiff was not made aware of the abnormal test result until September 25, 2004 when she received a letter from the IU Infant Screening Laboratory; F. Plaintiff did not receive an actual copy of the August 31, 2004 letter from the IU Lab until late September or early October of 2004; G. Plaintiff contends in paragraph 31 of her Complaint that these failures were purely the result of lack of proper attention and/or administrative or clerical failures, none of which involved the exercise of medical skill or judgment.
13. This court finds that the alleged acts of negligence set out above do have to do with the provider's behavior or practices while acting in his professional capacity as a provider of medical services. Further, there is a causal connection between the conduct complained of and the nature of the patient-health care provider relationship. The court also notes that the test involved revealed a "borderline abnormal" reading. Such a reading makes the medical issues more complicated and would involve an analysis of the medical standard of care and be outside the common knowledge of a lay juror. In the end, this court cannot conclude Defendants' alleged acts of negligence are demonstrably unrelated to the promotion of the Plaintiff's health or not involving the provider's exercise of professional expertise, skill, or judgment. Therefore, Plaintiff's claim is governed by the terms and provisions of the MMA.

Appellants' App. pp. 14-15.

Analysis

[8] Metz appeals the trial court's grant of Medical Providers' motion to dismiss pursuant to both Indiana Trial Rule 12(B)(1) and Indiana Trial Rule 12(B)(6). Trial Rule 12(B)(1) addresses the "[l]ack of jurisdiction over the subject matter." In reviewing a motion to dismiss for lack of subject matter jurisdiction pursuant to Trial Rule 12(B)(1), the relevant question is whether the type of claim presented falls within the general scope of the authority conferred upon the court by constitution or statute. Robertson v. Anonymous Clinic , 63 N.E.3d 349, 356 (Ind. Ct. App. 2016), trans. denied . A motion to dismiss for lack of subject matter jurisdiction presents a threshold question with respect to a court's power to act. Id. "The standard of review for a trial court's grant or denial of a 12(B)(1) motion to dismiss for lack of subject matter jurisdiction is 'a function of what occurred in the trial court.' " Berry v. Crawford , 990 N.E.2d 410, 414 (Ind. 2013) (citing GKN Co. v. Magness , 744 N.E.2d 397, 401 (Ind. 2001) ), reh'g denied . Where the facts before the trial court are not in dispute, the question of subject matter jurisdiction is one of law, and we review the trial court's ruling de novo. Id. Likewise, when reviewing a final judgment, we review all conclusions of law de novo. Id. In the appeal from a trial court's grant of a pretrial motion to dismiss under Trial Rule 12(B)(1), we accept as true the facts alleged in the complaint. State ex rel. Zoeller v. Aisin USA Mfg., Inc. , 946 N.E.2d 1148, 1149-50 (Ind. 2011), reh'g denied .

[9] Trial Rule 12(B)(6) addresses the "[f]ailure to state a claim upon which relief can be granted." A motion to dismiss under Trial Rule 12(B)(6) tests the legal sufficiency of the plaintiff's claim, not the facts supporting it. Bellwether Properties, LLC v. Duke Energy Indiana, Inc. , 87 N.E.3d 462, 466 (Ind. 2017). A dismissal under Trial Rule 12(B)(6) is improper " 'unless it appears to a certainty on the face of the complaint that the complaining party is not entitled to any relief.' " Id. (quoting State v. American Family Voices, Inc. , 898 N.E.2d 293, 296 (Ind. 2008), reh'g denied ). We review a Trial Rule 12(B)(6) dismissal de novo, giving no deference to the trial court's decision. Id. In reviewing the complaint, we take the alleged facts to be true and consider the allegations in the light most favorable to the nonmoving party, drawing every reasonable inference in that party's favor. Id. A complaint states a claim on which relief can be granted when it recounts sufficient facts that, if proved, would entitle the plaintiff to obtain relief from the defendant. Id.

[10] The issue in this appeal is whether Metz's allegations against Medical Providers are claims of general negligence or are claims covered by the provisions of the MMA. If the claims against Medical Providers are not subject to the MMA, they are claims of general negligence. See Robertson , 63 N.E.3d at 357. This distinction is important because the MMA requires the presentation of the proposed complaint to a medical review panel before an action may be commenced in a court in Indiana, and Metz did not present the claim to a medical review panel. See Ind. Code § 34-18-8-4. "Essentially, the [MMA] grants subject matter jurisdiction over medical malpractice actions first to the medical review panel, and then to the trial court." H.D. v. BHC Meadows Hospital, Inc. , 884 N.E.2d 849, 853 (Ind. Ct. App. 2008), reh'g denied , trans. denied ; see also B.R. ex rel. Todd v. State , 1 N.E.3d 708, 713 (Ind. Ct. App. 2013) ("Simply said, the [MMA] grants subject matter jurisdiction over medical malpractice actions first to the medical review panel, and then to the trial court."), trans. denied .

[11] Moreover, "[a] motion to dismiss for failure to state a claim on which relief may be granted may be an appropriate means of raising the statute of limitations." Chenore v. Plantz , 56 N.E.3d 123, 126 (Ind. Ct. App. 2016). "When the complaint shows on its face that the statute of limitations has run, the defendant may file a Trial Rule 12(B)(6) motion." Id. The MMA imposes a two-year statute of limitations but does allow claims on behalf of minors to proceed if the claim is filed before the minor's eighth birthday. See Ind. Code 34-18-7-1(b) ("A claim, whether in contract or tort, may not be brought against a health care provider based upon professional services or health care that was provided or that should have been provided unless the claim is filed within two (2) years after the date of the alleged act, omission, or neglect, except that a minor less than six (6) years of age has until the minor's eighth birthday to file."). Here, Metz did not file her complaint until after Kiara's twelfth birthday. In an action for general negligence, however, the statute of limitations would be tolled until two years after Kiara was eighteen years old. See Ind. Code 34-11-6-1 ("A person who is under legal disabilities when the cause of action accrues may bring the action within two (2) years after the disability is removed.").

Consequently, we address whether Metz's claims fall within the MMA.

[12] "[T]he MMA was a legislative response to escalating problems in the malpractice insurance industry, with physicians being fearful of exposure to malpractice claims and, further, being unable to obtain adequate malpractice insurance." Preferred Prof'l Ins. Co. v. West , 23 N.E.3d 716, 726 (Ind. Ct. App. 2014), trans. denied . "By providing some measure of protection to health care providers, the MMA was designed to preserve health care services available to the community." Id. The statutory procedures for bringing a medical malpractice action are in derogation of common law, and as such, they are to be strictly construed against limiting a claimant's right to bring suit. Id. at 726-27. When the legislature enacts a statute in derogation of common law, we presume that the legislature is aware of the common law and does not intend to make any change beyond what is declared in express terms or by unmistakable implication. Id. at 727.

[13] The MMA defines "malpractice" as "a tort or breach of contract based on health care or professional services that were provided, or that should have been provided, by a health care provider, to a patient." Ind. Code § 34-18-2-18. "Health care" is "an act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." I.C. § 34-18-2-13. The MMA does not necessarily apply to all cases where a health care provider is a party. West , 23 N.E.3d at 727.

[14] "Indiana courts understand the [MMA] to cover 'curative or salutary conduct of a health care provider acting within his or her professional capacity,' but not conduct 'unrelated to the promotion of a patient's health or the provider's exercise of professional expertise, skill, or judgment.' " Howard Reg'l Health Sys. v. Gordon , 952 N.E.2d 182, 185 (Ind. 2011) (internal citations omitted). To determine whether the MMA is applicable, we look to the substance of a claim. Id. Regardless of "what label a plaintiff uses, claims that boil down to a 'question of whether a given course of treatment was medically proper and within the appropriate standard' are the 'quintessence of a malpractice case.' " Id. (quoting Van Sice v. Sentany , 595 N.E.2d 264, 267 (Ind. Ct. App. 1992) ).

[15] To be outside the MMA, "a health care provider's actions must be demonstrably unrelated to the promotion of the plaintiff's health or an exercise of the provider's professional expertise, skill, or judgment." Id. at 186. "[T]he test is whether the claim is based on the provider's behavior or practices while acting in his professional capacity as a provider of medical services.' " Robertson , 63 N.E.3d at 358 (quoting Madison Ctr., Inc. v. R.R.K. , 853 N.E.2d 1286, 1288 (Ind. Ct. App. 2006), trans. denied ). We have also noted that:

A case sounds in ordinary negligence [rather than medical negligence] where the factual issues are capable of resolution by a jury without application of the standard of care prevalent in the local medical community. By contrast, a claim falls under the [MMA] where there is a causal connection between the conduct complained of and the nature of the patient-health care provider relationship.

Id. (quoting Terry v. Cmty. Health Network, Inc. , 17 N.E.3d 389, 393 (Ind. Ct. App. 2014) ) (internal citations omitted).

[16] In support of her argument that the MMA does not apply, Metz relies on Preferred Prof. Insurance Co. v. West , 23 N.E.3d 716 (Ind. Ct. App. 2014), trans. denied . In West , the plaintiff sustained a workplace injury due to the actions of her coworker, who was taking narcotic pain medications. The plaintiff brought a claim against her coworker's medical providers, and the trial court determined that the MMA did not apply to the plaintiff's claims. On appeal, the plaintiff claimed that the medical provider's office failed to place a telephone message slip in his medical file and that her coworker's nurse did not provide him with the proper warnings and precautions regarding taking narcotic pain medications.

[17] Regarding the message slip, we concluded:

[T]he essence of the claimed misconduct does not involve any exercise of professional medical judgment or skill by the medical provider. We have recognized that the text of the MMA indicates that the legislature intended to exclude from the MMA "conduct of a provider unrelated to the provider's exercise of judgment or skill." [ B.R. ex rel. Todd v. State , 1 N.E.3d 708, 716 (Ind. Ct. App. 2013) (quoting Collins v. Thakkar , 552 N.E.2d 507, 510-11 (Ind. Ct. App. 1990), trans. denied ), trans. denied .] Indeed, there is no need for a medical review panel, the purpose of which "is to provide an expert determination on the question of whether a provider complied with the appropriate standard of care." Id. The issues surrounding the administrative matter of the filing of the message slip are within the understanding of the average lay juror. A jury would be capable of resolving factual issues without applying the standard of care prevalent in the local medical community, and jurors' common knowledge and experience would enable them to understand these circumstances. Accordingly, the trial court properly determined this claim was not within the scope of the MMA.

West , 23 N.E.3d at 728.

[18] Regarding the nurse's failure to provide proper warnings to the coworker, we concluded:

The Wests' other claimed basis of negligence is that Nurse P allegedly failed to provide the proper warnings and instructions to Michael-because she was not trained properly on what to say, she negligently failed to follow procedure, or for some other reason. In contrast to the administrative task of filing the message slip, which we found did not fall within the purview of the MMA, we find that the allegations that Nurse P failed to warn Michael present a set of facts that allege negligence "at the periphery of medical malpractice." [ Eads v. Cmty. Hosp. , 932 N.E.2d 1239, 1244 (Ind. 2010) ]. It is one of those "grey areas on the fringe of the MMA[.]" Id. On one hand, there appears to be no allegation that a diagnosis was in error, that the prescribed medication was inappropriate for Michael's symptoms or condition, or that Dr. H did not prescribe the correct dosage. However, the claim that Nurse P failed to warn Michael at least potentially calls into question the degree of skill exercised by Michael's health care provider. As support for their position that the MMA does not apply to their claims, the Wests characterize Nurse P as a "non-medical employee," because she was a certified athletic trainer and not a licensed nurse, and that her alleged failure to communicate warnings to Michael was "clerical." Appellees' Wests' Br. at 8. However, Nurse P was Dr. M's assistant, was an employee of the medical provider, was considered the acting nurse, and was responsible for communicating with patients and physicians, including regarding medications. Therefore, under the facts of this case, we do not find the athletic trainer versus licensed nurse distinction to be legally dispositive. Assuming without deciding that the claimed failure to warn Michael about the effects and restrictions of the medication constitutes giving (or failing to give) medical care as considered by the MMA, our inquiry does not end there.

Id. at 728-29.

[19] We then went on to conclude that, regardless, the plaintiff was not a "patient" under the MMA, and the MMA was not "intended to cover claims by third parties having absolutely no relationship to the doctor or medical provider." Id. at 730. We, consequently, concluded that the plaintiff's claims constituted common law negligence, not medical malpractice.

[20] Unlike in West , there is no argument that Kiara was not a patient covered by the MMA. Rather, Metz seeks to characterize Medical Providers' inaction regarding Kiara's lab results as a "purely administrative act" or clerical error similar to the message slip in West . Appellants' Br. p. 15. According to Metz, no expert determination was required to analyze whether Medical Providers complied with an appropriate standard of care, and a lay person is capable of resolving the issues based upon his or her own common knowledge and experience.

[21] We do not find West persuasive here. As we have noted, the MMA defines health care as "an act or treatment performed or furnished, or that should have been performed or furnished, by a health care provider for, to, or on behalf of a patient during the patient's medical care, treatment, or confinement." Ind. Code § 34-18-2-13. The prompt analysis of laboratory results and proper follow up care is "part of what patients expect from health care providers." Gordon , 952 N.E.2d at 186. Such care is essential to the promotion of the patient's health. We disagree with Metz that the proper follow-up and interpretation of the "borderline abnormal" TSH result on Kiara's laboratory report is a matter in the common knowledge of a lay person. This allegation is much more than a mere administrative error.

[22] Metz also claims that Dr. Schumacher's staff member gave her the wrong test results when Metz called Dr. Schumacher's office. Metz argues that this "negligent misrepresentation" claim does not fall within the MMA. Appellants' Br. p. 22. Our supreme court, however, has directed that we look to the substance of the claim, not the plaintiff's label for the claim. See Gordon , 952 N.E.2d at 185. The substance of the claim is that Dr. Schumacher's staff allegedly gave Metz erroneous information regarding Kiara's laboratory test results. Again, this allegation pertains to an act performed by a health care provider for a patient during the patient's medical care. Providing accurate test results to a patient is also essential to the promotion of the patient's health. As such, it falls within the purview of the MMA.

[23] Although we sympathize with Metz's situation, "[i]t is difficult to contemplate that [these services] fall[ ] outside the [MMA]." Id. Under the circumstances here, we conclude that the MMA applies to Metz's claim. Because Metz failed to present the claim to a medical review panel and failed to file the claim in a timely manner, the trial court properly dismissed Metz's complaint against Medical Providers.

Conclusion

[24] The trial court properly dismissed Metz's complaint against Medical Providers pursuant to Trial Rule 12(B)(1) and Trial Rule 12(B)(6). We affirm.

[25] Affirmed.

Brown, J., and Altice, J., concur.

Order

[1] Appellees, by counsel, filed an Appellees' Motion to Publish Memorandum Decision.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellees' Motion to Publish Memorandum Decision is granted.
2. This Court's opinion heretofore handed down in this cause on November 15, 2018, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered 1/9/2019.

[4] Brown, Altice, Tavitas, JJ., concur.

      In support of her argument, Metz relies on Bader v. Johnson , 732 N.E.2d 1212 (Ind. 2000), for the proposition that expert medical testimony is not required to prove that a health care worker should provide test results to a patient. Bader , however, was a medical malpractice action in which the health care providers failed to provide test results to the patient. Our supreme court noted that "expert medical testimony is usually required to determine whether a physician's conduct fell below the applicable standard of care." Bader , 732 N.E.2d at 1217. The court then held that, because the failure to provide test results is not a technical complex matter, expert medical testimony was probably not required to determine whether the health care providers breached their duty. Id. at 1218. Bader was decided in the context of determining breach of duty under the MMA, not whether the MMA applied at all. We do not find Bader persuasive here.

      In support of her argument, Metz relies on H.D. v. BHC Meadows Hospital, Inc. , 884 N.E.2d 849, 854-55 (Ind. Ct. App. 2008), trans. denied , in which this court held that a hospital's "negligent or reckless dissemination of a patient's confidential information to members of the general public" did not come within the purview of the MMA. The facts of H.D. are not comparable to the situation here, and H.D. is not applicable.


text:
    IN RE Termination of the Parent-Child Relationship of M.P. (Minor Child) and K.P. (Mother), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner
    Court of Appeals Case No. 18A-JT-1462
    Court of Appeals of Indiana.
    Filed November 30, 2018 Publication Ordered January 9, 2019
    Case Summary
    [1] K.P. (Mother) appeals following the termination of her parental rights to M.P. (Child). Mother presents two issues for our review:
    1. On remand from this court, did the trial court abuse its discretion in granting the Department of Child Services's (DCS) motion to reopen the evidence over Mother's objection?
    2. Did DCS present sufficient evidence to establish that it complied with the statutorily-mandated ten-day notice of the factfinding hearing on the petition to terminate Mother's parental rights?
    [2] We affirm.
    Facts & Procedural History
    [3] Mother and R.P. (Father) are the parents of Child, born August 25, 2010. On October 30, 2015, the Monroe County Sheriff's Department received an anonymous report concerning drug use at Mother's home. The following day, October 31, 2015, a Family Case Manager (FCM) with DCS made an unannounced visit to the home and observed that Mother was impaired while caring for Child and had track marks on her arms. The FCM also observed a six-inch knife within reach of Child, that the home was in disarray, and that there was a bottle of Narcan, a glass pipe, and a needle in a dresser in Mother's bedroom. Mother admitted that she used marijuana, oxycodone, and heroin. Child was removed from Mother's care that day.
    [4] On November 4, 2015, DCS filed a petition alleging that Child was a child in need of services (CHINS). The trial court adjudicated Child a CHINS on January 14, 2016. On February 8, 2016, at the conclusion of a dispositional hearing, the trial court entered a dispositional order requiring Mother to complete a substance abuse assessment and follow all recommendations, participate in individual and group counseling and homebased case management, submit to random drug screens, and participate in supervised visits with Child. Mother was also required to permit access to her home, maintain suitable and stable housing and a legal and stable source of income, and keep in contact with DCS at lease once per week.
    [5] Mother completed the substance abuse evaluation and was diagnosed with major depressive disorder, posttraumatic stress disorder, severe opioid and marijuana use disorder, and moderate alcohol use disorder. It was recommended that Mother complete a thirty-day inpatient treatment program to be followed by individual counseling to address her mental health diagnosis and group counseling for treatment of her substance abuse issues.
    [6] In its May 2, 2016 case review order, the court found that Mother was not complying with services, had not enhanced her ability to fulfill her parental obligations, and had not fully cooperated with DCS. Specifically, the court found:
    [Mother] has not been regularly participating in substance abuse outpatient treatment and individual counseling at Centerstone. Inpatient treatment has been recommended by her therapist. [Mother] was admitted to Stepping Stones treatment facility on March 21, 2016. She was unsuccessfully discharged the next day for breaking facility rules. She then entered the Women's Bureau Transitions program on March 29, 2016. She left the program against staff advice on April 12, 2016. She tested positive for heroin and morphine on March 2, 2016. She has failed to screen when requested on multiple occasions.
    Exhibits Vol. III at 30. In the court's order approving the permanency plan, dated November 30, 2016, the court found:
    [M]other has not complied with the dispositional orders. [Mother] continues to use controlled substances. She tested positive for amphetamine, Xanax, and Soma on September 26, 2016. She tested positive for THC on September 29 and October 27, 2016. She missed drug screens on August 1, November 18 and November 23, 2016. [Mother] has been participating in IOP. Until recently, her participation in individual therapy was sporadic. When she has appeared for therapy sessions, she minimized her conduct and blamed others. However, she recently has begun to make progress in therapy. [Mother] has a prescription for Suboxone. [Mother] has not demonstrated that she [can] maintain sobriety and care for [Child].
    Id. at 36.
    [7] In its permanency review order of March 23, 2017, the court found that Mother was generally complying with the dispositional orders, but that she had yet to complete the court-ordered services. The court noted that Mother was visiting with Child and generally cooperating with DCS. On April 26, 2017, Mother was granted unsupervised visits with Child. However, by June 14, 2017, Mother's visitation was modified back to supervised visitation.
    [8] In a July 17, 2017 permanency review order, the trial court found that Mother was visiting Child, but that she had not otherwise complied with the court's dispositional order. The court noted that Mother continued to test positive for prescribed Suboxone and that she had recently relapsed. Mother also continued to see Father and encouraged Child to lie about it. On June 18, 2017, Mother and Father were arrested for theft.
    [9] On July 28, 2017, DCS filed a petition to terminate Mother's parental rights. On August 10, 2017, the court set an initial hearing on the termination petition and sent notice of the hearing to Mother at her home on "W. Marlene Dr." Appendix Vol. II at 14. Mother appeared at the initial hearing by telephone. The court entered a denial on Mother's behalf and appointed her a public defender. The court also set a pretrial conference for September 18, 2017 and a factfinding hearing for September 25, 2017. At the pretrial conference, the court granted the "parties[']" request to reset the factfinding hearing to October 30, 2017. Id. at 3. The court held the factfinding hearing as scheduled. Mother did not appear personally, but her attorney was present. At the beginning of the hearing, Mother's counsel requested a continuance given Mother's absence and stated, "Um, doubt if DCS has given them notice. But, maybe." Transcript Vol. II at 5. The rest of counsel's statement was inaudible due to construction work outside the building. DCS objected to the continuance, arguing, "the notices were provided more than 10 days in advance .... It was set about a month ago, um, parents were aware of today's hearing." Id. at 6. The court denied Mother's motion to continue and proceeded with the factfinding hearing concerning termination of Mother's parental rights.
    [10] During the factfinding hearing, FCM Branan Neeley testified that Mother had not completed inpatient treatment, had not successfully completed the Stepping Stones program, and had continued to use drugs. He further testified that Mother attended 36 out of 87 individual therapy sessions and 70 out of 138 group therapy sessions. Additionally, he noted that Mother was offered 116 drug screens, of which she missed 22. FCM Neeley also noted that Mother attended visits with Child 139 out of 161 times, but recently her participation had declined. A court appointed special advocate (CASA) testified that Child had bonded and was very affectionate with her pre-adoptive parents and that she believed adoption was the "ideal" plan for Child. Id. at 20. On November 2, 2017, the court entered its order terminating Mother's parental rights.
    [11] On December 4, 2017, Mother filed a notice of appeal under Cause No. 53A05-1712-JT-2830. In her brief, Mother asserted that her due process rights had been violated because DCS had not given her adequate notice of the date and time of the termination hearing. Instead of filing a brief in response, DCS filed a motion for remand, agreeing that the record lacked proof of compliance with the ten-day notice requirement of Ind. Code § 31-35-2-6.5. This court granted the motion on April 6, 2018 and remanded for further proceedings.
    [12] On April 18, 2018, DCS filed with the juvenile court a motion to reopen the evidence. The court held a hearing on the motion on May 3, 2018. Over Mother's objection, the court granted DCS's motion, finding that this court's order for remand was for the purpose of "giving [DCS] an opportunity to demonstrate that there was compliance with Indiana Code 31-35-2-6.5." Transcript Vol. II at 28. The hearing continued, and DCS was permitted to introduce evidence only as to whether Mother was afforded notice. At the conclusion of the hearing, the court took the matter under advisement.

      Father's parental rights to Child were also terminated, but he does not participate in this appeal. Herein, we will set forth the facts only as they relate to termination of Mother's parental rights.

      The chronological case summary indicates that Mother was not present for the pretrial conference.

      As with the instant appeal, Mother did not argue that the evidence was insufficient to terminate her parental rights.

   [13] On May 16, 2018, the trial court entered an order terminating Mother's parental rights to Child. With regard to notice, the court found:

On October 17, 2017, [DCS] sent Notices to [Mother] at [her] last known address[ ] (Exhibit # 1 from the hearing on May 3, 2018). The Notices comply with the requirements of I.C. 31-35-2-6.5. [FCM] Neeley testified that he sent [Mother]'s Notice to her last known address at 2457 W. Marlene Dr. ... [Mother] testified that Mr. Neeley was lying under oath and that she had provided Mr. Neeley with a different address prior to the Fact-Finding hearing. She further testified that she thought the Fact-Finding hearing was happening "a few days in the future." The Court accepts Mr. Neeley's testimony as truthful. [Mother] is not a credible witness. The Court does not accept her testimony as truthful.

Appendix Vol. II at 8. Mother filed the instant appeal. Additional facts will be provided as needed.

Discussion & Decision

Motion to Reopen the Evidence

[14] Mother argues that the court abused its discretion in granting DCS's motion to reopen the evidence. She asserts that this court's order remanding the case made no mention of reopening the evidence. She also claims that she was greatly prejudiced by the court's decision to permit DCS to present additional evidence as to whether she was afforded notice of the termination hearing such that "her substantive due process rights under the Fourteenth Amendment to build and maintain a family have been compromised." Appellant's Brief at 11. We disagree.

[15] "[W]hen the government seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of due process." Q.B. v. Marion Cnty. Dep't of Child Servs. , 873 N.E.2d 1063, 1067 (Ind. Ct. App. 2007). These include not only compliance with the various statutory requirements of the Indiana Code, but also the fundamental constitutional requirements prohibiting " 'state action that deprives a person of life, liberty, or property without a fair proceeding.' " In re A.B. , 922 N.E.2d 740, 744 (Ind. Ct. App. 2010) (quoting In re B.J. , 879 N.E.2d 7, 16 (Ind. Ct. App. 2008), trans. denied ). Among the protections written into our statutes, I.C.§ 31-35-2-6.5 provides, in relevant part, that "[a]t least ten (10) days before a hearing on a petition or motion under this chapter ... the person or entity who filed the petition to terminate the parent-child relationship ... shall send notice of the review to ... [t]he child's parent." This court has held "[c]ompliance with the statutory procedure of the juvenile code is mandatory to effect termination of parental rights." In re T.W. , 831 N.E.2d 1242, 1246 (Ind. Ct. App. 2005). Although statutory notice "is a procedural precedent that must be performed prior to commencing an action," it is not "an element of plaintiff's claim." In re H.K. , 971 N.E.2d 100, 103 (Ind. Ct. App. 2012). Rather, failure to comply with statutory notice is a defense that must be asserted. Id.

[16] In H.K. , this court considered on the merits whether DCS complied with the statutory notice requirement of I.C. § 34-35-2-6.5. Finding no evidence in the record that indicated DCS had complied with the notice statute, the court concluded the "most appropriate remedy" was to remand to the trial court with instructions that the court conduct a hearing to determine if DCS properly provided the requisite notice to the mother of the date and time of the final hearing. H.K. , 971 N.E.2d at 103.

[17] Although at a different procedural junction, the same remedy was employed here. This court granted DCS's motion to remand "for further proceedings" on the issue of whether Mother received the requisite notice of the termination hearing. In this regard, we find the court on remand properly interpreted this court's order as providing DCS with the opportunity to demonstrate compliance with I.C. § 31-35-2-6.5. Such an opportunity required that the court hold a hearing and that the evidence be reopened so DCS could present evidence as to whether Mother was afforded the requisite notice of the termination hearing. Indeed, given that DCS essentially conceded that the record was devoid of evidence that DCS provided the requisite notice, remand for further proceedings would have been pointless if the trial court could not reopen the evidence. We therefore conclude that the trial court did not err in granting DCS's motion to reopen the evidence.

Sufficiency

[18] Mother argues that, even if it was not error for the trial court to reopen the evidence, DCS did not present sufficient evidence that she was afforded the requisite notice of the termination hearing. Once the defense of lack of notice is placed in issue, DCS bears the burden of proving compliance with the notice statute. H.K. , 971 N.E.2d at 103.

[19] On remand, DCS presented testimony from FCM Neeley that notice was sent to Mother's last known address more than ten days prior to the termination hearing. When challenged as to what he knew to be Mother's last known address, FCM Neeley maintained that he knew Mother's last address to be on West Marlene Drive. DCS also provided copies of the notice itself, which was addressed to Mother at the West Marlene Drive address and dated October 17, 2017. The termination hearing was held on October 30, 2017. To refute DCS's evidence, Mother testified that FCM Neeley was lying under oath and claimed that she provided him with a different address prior to the termination hearing.

[20] The conflicting evidence necessarily required the court to make a credibility determination, and the trial court expressly determined in its order terminating Mother's parental rights that it found FCM Neely's testimony truthful and that Mother was not credible. We will not second-guess the court in this regard. DCS presented evidence that notice of the termination hearing was sent to Mother at her last known address more than ten days prior to the termination hearing. This is sufficient for purposes of I.C. § 31-35-2-6.5. See H.K. , 971 N.E.2d at 103 (holding that while formal service of process is not required, DCS is required to send notice of a termination hearing to the parent's last known address at least ten days before the hearing); In re C.C. , 788 N.E.2d 847 (Ind. Ct. App. 2003) (holding notice of the final termination hearing was not defective under I.C. § 31-35-2-6.5 where DCS established it mailed such notice to father's last known address, even though DCS knew father did not reside at that location).

[21] Judgment affirmed.

Najam, J. and Pyle, J., concur.

Order

[1] Appellee, by counsel, filed a Motion to Publish Memorandum Decision.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellee's Motion to Publish Memorandum Decision is granted.
2. This Court's opinion heretofore handed down in this cause on November 30, 2018, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered 1/9/2019.

[4] Najam, Pyle, Altice, JJ., concur.