author: FRIEDLANDER, Judge.

text:
    Anthony L. COLE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 73A01-1107-CR-310.
    Court of Appeals of Indiana.
    April 16, 2012.
    Ordered Published May 10, 2012.

      Gilda W. Caviness, Caviness Law Office, LLC, Rushville, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Andrew R. Falk, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

FRIEDLANDER, Judge.

Following a jury trial, Anthony Cole was convicted of Burglary as a class A felony; Robbery as a class B felony; Criminal Confinement as a class B felony; Intimidation with a Deadly Weapon, a class C felony; Theft as a class D felony; Criminal Gang Activity as a class D felony; and Carrying a Handgun Without a License, a class A misdemeanor. Thereafter, Cole admitted to being a Habitual Offender. Inclusive of the habitual offender enhancement, the trial court sentenced Cole to an aggregate sentence of fifty years. On appeal, Cole presents the following issues for our review:

1. Is the evidence sufficient to support Cole's conviction for class D felony criminal gang activity?
2. Do Cole's convictions for burglary, robbery, criminal confinement, intimidation with a deadly weapon, theft, and carrying a handgun without a license violate the double jeopardy clause of the Indiana Constitution?
3. Is Cole's habitual offender enhancement proper?

We affirm in part, reverse in part, dismiss in part, and remand.

Jerry Ayers stopped smoking in 1992. Since that time, Ayers would accumulate one-and five-dollar bills as his non-smoking savings. Ayers folded the bills in half and kept the money in varying bunches, each wrapped with colored rubber bands. Ayers stored all of his cash savings in this manner and kept the money in a safe in his garage. Years later, Ayers began having some medical issues, so he started selling marijuana. Ayers purchased the marijuana from Robbie McColley. Ayers kept his money from the sale of marijuana in his bedroom, separate from his nonsmoking savings. Ayers estimated that he had as much as $8000 in his bedroom, but did not know how much cash he had in his safe in the garage other than to say it was a "great deal more" than $20. Transcript at 266. Ayers also owned two guns and a holster that he kept in his safe in the garage.

McColley had been to Ayers's home numerous times and knew of the location of the safe in Ayers's garage. On one occasion, McColley introduced Ayers to a man Ayers knew only as Blade. Blade's real name is Edward LeFlore. MeColley brought LeFlore to Ayers's home the previous winter so LeFlore could inquire about buying a car from Ayers. Ayers had never before met Cole, the defendant in this case.

In October 2010, Ayers and his stepdaughter, Lisa Boswell, lived at Ayers's home in Fairland, Indiana. On October 4, 2010, Ayers was away from the home, but Boswell was there with her twenty-one-year-old step-daughter, Katina. That evening, Boswell was in the kitchen cleaning while Katina was in another room watching television. Around 8:00 p.m., the women heard a loud noise and then saw Cole kick through the front door. Cole and a second individual barged through the door and Cole identified himself and the second intruder as police officers, and, while pointing a gun, ordered Boswell and Katina to lie face down on the floor. Cole and the second individual were dressed in black and both were wearing black shirts that said "Police" or "K-9 Unit" on them. Transcript at 343. They were also wearing ski masks and black gloves. The women described Cole, the first intruder through the door, as a stocky black man, "a big, broad guy" with "great big arms" and a calm demeanor. Id. at 305. The women described the second individual through the door as a "tall, slender guy" who had a loud voice and an active demeanor. Id. at 304.

Boswell did not immediately comply with Cole's command, so Cole came across the living room and stood close to Boswell, pointed the gun at her, and again ordered her to lie on the floor. Boswell complied with Cole's second command, and then Cole patted her down, asked if she had anything on her, and tied her hands behind her back with zip ties. The second intruder went to Katina and helped her to the floor. When Cole finished securing Boswell's hands behind her back, he moved to Katina and secured her hands behind her back with zip ties. Cole told Boswell and Katina to keep their faces down and not look up. Cole was acting like a police officer and seemingly talking to other officers on a radio reporting that the house was secure so other officers could enter.

The second intruder went to the back of the house and looked in all of the rooms while asking if anyone else was in the home. He then went into Ayers's room and Boswell and Katina could hear him making a lot of noise as he was ransacking Ayers's room.

While the second intruder was in Ayers's room, Cole, who was standing over Boswell and had a gun against the back of her head, commented on the fact that there was "an awfully big safe" in the garage. Id. at 308. Cole questioned Boswell about the contents of the safe and then asked her for the combination. Cole eventually was able to open the safe. During this time, the women heard sirens approach and then fade. Cole acted calm as if they were expected. Cole then left the house with a bag over his shoulder that contained contents from the garage safe, and the second intruder also left the house with a large bag full of items from Ayers's room. As they were leaving, the intruders told the women to "keep your face on the floor. We're bringing in the K-9s." Id. at 346. Boswell estimated that the men were in the home for fifteen to twenty minutes.

After the men left, Boswell was able to free herself from the zip ties and then she helped remove the zip ties from Katina's hands. The two women then left the home and quickly walked to a neighbor's home where police were called. A detective who spoke with Boswell and Katina noted that they each had "little indents and red marks" around their wrists where the zip ties had been used to secure their hands behind their backs. Id. at 324. The marks became lighter as time went on. Photographs were taken of the marks approximately six hours after the incident.

After speaking with police, Boswell and Katina were permitted to return to the home and collect some personal belongings. When they went inside, Boswell noted that her stepfather's room had been "demolished." Id. at 325. No other room in the house had been torn apart in the same manner, even though Boswell's purse was out in the open in her bedroom. Other than the large safe in the garage, little else in the house had been touched.

Meanwhile, Sergeant Louie Koch, a K-9 officer with the Shelby County Sheriffs Department, was on patrol in the area when he came across a stranded vehicle. Sergeant Koch discovered that the car's owner lived nearby, so he went to the owner's residence, going by Ayers's residence on his way. Sergeant Koch learned that the owner of the stranded vehicle was on his way back to fix the car, so Sergeant Koch headed back toward Interstate 74, at which time he encountered a dark SUV stopped in the roadway with its lights off in front of Ayers's home. The SUV was not in the roadway when Sergeant Koch passed by just minutes earlier. Sergeant Koch activated his emergency lights, but the driver, later identified as LeFlore, drove away with quick acceleration. Sergeant Koch initiated a vehicle pursuit and called for back-up assistance. After a short pursuit, LeFlore stopped the vehicle in the middle of the road and fled from the vehicle, running north into a wooded area. Sergeant Koch found a black ski-mask outside the driver's side door LeFlore had just exited.

Sergeant Koch described the fleeing suspect as a black male wearing a white tank top, and black pants and shoes. Sergeant Koch identified himself as a K-9 officer and ordered LeFlore to stop. After Sergeant Koch lost sight of LeFlore, he returned to the SUV, made sure no one else was inside, and secured it. He then retrieved his K-9 and continued his search for LeFlore. The K-9 followed a "really strong track" along which Sergeant Koch spotted a white tank top in the middle of a field. Id. at 408. As his search continued, Koch found a black t-shirt with the word "Police" on it and he advised a crime scene technician as to its location. Id. at 409. LeFlore was apprehended later that evening after someone reported seeing a black male was walking down Pumpkin Vine Road. LeFlore was wearing only his undershorts, had smudges of dirt on his back, shoulders, and legs, and his feet were bleeding.

Sheriff Michael Bowlby responded to Sergeant Koch's call for assistance after LeFlore fled in the SUV. As Sheriff Bow!l-by exited I-74 he observed a black male, later identified as Cole, walking in front of an old convenience store that had closed. Cole was dressed in dark clothing with clearly visible orange or red embroidery on both the shirt and pants. Given the report that two black men had held two women at gunpoint, Sheriff Bowlby secured Cole while other officers patted him and placed him in handcuffs. Cole was calm, but sweaty despite the cool temperature of that night. Officers found in Cole's pocket seven bundles of folded money, each of them banded together with colored rubber bands and totaling $563. Cole explained to the officers that his car had broken down on the interstate as he was headed to the nearby casino. Sheriff Bowlby searched for a broken-down car as described by Cole and never discovered one and was not aware of anyone else finding a car similar to that described by Cole. During a search of the area, officers discovered a number of items, including ear covers, a black stocking eap, brown work gloves, and a wig behind the convenience store where Cole was apprehended. A shirt marked with "K-9" was found in a nearby yard.

In the days following the incident, additional items were found by private citizens, and police were called to collect the evidence. Pants and boots were found in a nearby barn and a suitcase, safe, and two handguns and a holster were found in another neighbor's yard. The safe contained a large amount of money in bundles of ones, fives, and twenties, totaling $6,832. An eleven-year-old boy found brown gloves and a shirt with "police" written on it in a culvert near his yard. Another neighbor boy found a gun in his yard, which he fired into the air thinking it was a cap gun. The items were submitted to the Indiana State Policy Laboratory for testing. The results of the testing directly linked LeFlore to several items found following the incident (e., one of the handguns, a brown glove, and a shirt marked with "Police" that was found in the SUV). The items found behind the convenience store where Cole was apprehended were not submitted for DNA analysis.

A search of the SUV from which Le-Flore fled revealed a Motorola cell phone with the batteries out, a black bag containing a handgun, ammunition, a Blackberry with the batteries out, and an LG Verizon cell phone with its batteries out. An examination of the Blackberry revealed that it contained pictures of LeFlore and his girlfriend and an entry for "Amp" with the same telephone number that was associated with the Motorola cell phone. Cole was also known as "Amp."

On October 8, 2010, the State charged Cole with burglary, robbery, criminal confinement, intimidation with a deadly weapon, theft, criminal gang activity, and carrying a handgun without a license. The State also included four enhancements to the underlying charges. A jury trial was held May 10-12, 2011, at the conclusion of which the jury found Cole guilty on all counts. Cole then entered into an agreement in which he admitted his status as a habitual offender and the State agreed to dismiss the remaining enhancements. The trial court held a sentencing hearing on June 9, 2011. The trial court sentenced Cole to twenty years for the burglary conviction, twenty years for robbery, twenty years for criminal confinement, eight years for intimidation, three years for criminal gang activity, and one year for carrying a handgun without a license, with all of the sentences to run concurrently. The trial court enhanced the burglary sentence by thirty years as a result of Cole's status as a habitual offender, for an aggregate sentence of fifty years.

1.

Cole argues that the evidence is insufficient to support his class D felony convietion for criminal gang activity,. Cole's challenge to the sufficiency of the evidence centers on what Cole perceives to be a lack of evidence that he was affiliated with a criminal gang. Our standard of review for challenges to the sufficiency of the evi-denee is well settled.

When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Henley v. State, 881 N.E.2d 639, 652 (Ind.2008). "We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence." Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.2009).

To sustain Cole's conviction for criminal gang activity, the State's evidence must have proved beyond a reasonable doubt that Cole "knowingly or intentionally actively participated] in a criminal gang." See I.C. § 35-45-9-3. A "criminal gang" is defined as follows:

[A] group with at least three (8) members that specifically:
(1) either:
(A) promotes, sponsors, or assists in; or
(B) participates in; or
(2) requires as a condition of membership or continued membership; the commission of a felony or an act that would be a felony if committed by an adult or the offense of battery (IC 35-42-2-1).

I.C. § 35-45-9-1 (West, Westlaw current through 2011 1st Regular Sess.).

Cole asserts without any citation to authority that characterizing what constitutes a criminal gang as "more than two individuals ... charged as co-defendants in a felony case would surely be contrary to the legislative intent of the statute imposing penalties for gang activity." Appellant's Brief at 8. Cole further maintains that the State did not prove beyond a reasonable doubt that more than two individuals were involved on the night in question.

We disagree with Cole on both counts. First, the statute defining what constitutes a criminal gang requires only, as pertinent here, that "a group with a least three (3) members ... assist[ed] in or participate{d] in the commission of a felony." See I.C. 35-45-9-1. The legislative intent is clear from the language of the statute. We will not impose an unwritten requirement that there be proof of formal "gang" affiliation.

Further, the State presented sufficient evidence that Cole knowingly and intentionally participated in a eriminal gang by joining with two other men to burglarize, rob, criminally confine, and intimidate Boswell and Katina. Specifically, the State's evidence established that Cole and another (uncharged) individual forced their way into Ayers's home and that they did so with intent to commit a felony. Given the timing of events, it is clear that a third individual, LeFlore, was outside in a getaway vehicle and that he was confronted by and fled from Sergeant Koch while Cole and the second intruder were still engaged in the burglary, robbery, and other related offenses inside Ayers's home. Items found inside the vehicle from which LeFlore fied were similar to and consistent with items used by Cole and the second intruder during the home invasion thus linking LeFlore to the events of the evening.

To the extent Cole challenges the evidence as conflicting, we note that "[IJt is the function of the trier of fact to resolve conflicts in testimony and to determine the weight of the evidence and the credibility of the witnesses." Maxwell v. State, 731 N.E.2d 459, 462 (Ind.Ct.App.2000), trans. denied. The jury was properly instructed on the elements of the crime of criminal gang activity and what constitutes a erimi-nal gang. The jury was entitled to weigh the State's evidence and could have reasonably inferred that three men were involved on the night in question.

2.

Cole argues that his convictions for burglary, robbery, eriminal confinement, intimidation with a deadly weapon, theft, and carrying a handgun without a license violate state double jeopardy principles.

Our Supreme Court has established a two-part test for analyzing state double jeopardy claims. According to that test, multiple offenses are the same offense in violation of article 1, section 14, "if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense." Richardson v. State, 717 N.E.2d 32, 49 (Ind.1999). Cole raises his claim under the actual evidence test. Thus, we must determine whether there is a reasonable possibility that the evidentia-ry facts used by the jury to establish the essential elements of one offense may also have been used to establish all of the essential elements of the other offense. See Davis v. State, 770 N.E.2d 319 (Ind.2002); Spivey v. State, 761 N.E.2d 831, 833 (Ind.2002) ("the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense") (emphasis supplied). In determining what facts were used to support each conviction, we will consider the evidence, charging information, final jury instructions, and arguments of counsel. Rutherford v. State, 866 N.E.2d 867 (Ind.Ct.App.2007).

Having reviewed the record, we conclude that Cole is correct that his convictions for robbery and theft violate double jeopardy principles. The actual evidence relied upon by the State to support the robbery conviction also establish the essential elements of the theft conviction. We therefore remand to the trial court with instructions to vacate Cole's convietion for class D felony theft.

With regard to Cole's remaining convictions, we conclude that the actual evidence used to support each of them was separate and distinct and therefore, we find no double jeopardy violations. To be sure, the State relied on testimony that established that Cole forced his way into Ayers's home with the intent to commit a felony therein. The erime was elevated to a class A felony because Cole entered Ayers's home while armed with a deadly weapon (Le., a handgun) and inflicted bodily injury on Boswell when he used zip ties to secure her 'hands behind her back. Cole's intent to commit a felony was clear given that he entered by subterfuge wearing a mask, and wore clothing that indicated, and acted as if, he was a police officer.

The robbery conviction is supported by evidence that Cole took property by force while using a deadly weapon. Specifically, the State presented evidence that Cole held a gun against the back of Boswell's head and demanded the combination to Ayers's safe. Once Cole succeeded in opening the safe, he removed several thousand dollars in cash and at least two handguns.

The eriminal confinement conviction was established by evidence that Cole, while armed with a handgun, ordered Boswell and Katina to lie on the floor and then he secured their hands behind their backs with zip ties.

The State proved the intimidation conviction with evidence that Cole communicated a threat to Boswell and Katina when, while armed with a deadly weapon, he ordered them to remain on the floor and not look up as he and the second intruder exited the house. Katina was so frightened that she hoped she would be killed first so that she would not have to experience any harm that might be inflicted upon Boswell (her step-mother).

Contrary to Cole's argument, his convietion for carrying a handgun without a license was not based upon the evidence that he committed several offenses while armed with a deadly weapon. The State relied upon evidence that Cole carried a handgun on his person away from his home or place of business. Cole not only carried his handgun to the crime seene and used it during the commission of the crimes, he also carried it as he left the crime seene. Cole also removed two handguns from Ayers's safe and took them with him when he left.

During closing arguments, the State carefully differentiated between the evidence that proved the essential elements of the different erimes for which Cole was convicted. Although some of the evidence was used in establishing one or more of the elements of several crimes, in no instance was all of the same evidence used to establish all of the essential elements of two separate crimes. Because each of Cole's convictions was based on different evidentiary facts, his convictions do not violate double jeopardy principles.

8.

Cole challenges the validity of his status as a habitual offender, arguing that it is contrary to law. Specifically, Cole argues that his prior convictions for possession of marijuana do not qualify as prior, unrelated felony offenses capable of supporting his status as a habitual offender.

After the jury returned its guilty verdicts on the underlying offenses, but prior to the start of the second phase of the trial on the matter of Cole's status as a habitual offender and other enhancements, Cole submitted to the court a written document entitled "Agreement on Admission of Habitual Offender Enhancement." Appellant's Appendix at 141. In it, Cole admitted to being a habitual offender and the State agreed to dismiss three other enhancements, including carrying a handgun without a license with a prior conviction, carrying a handgun without a license after a felony conviction, and criminal gang activity. The trial court held a guilty-plea-type hearing, advising Cole of his rights and confirming that Cole was knowingly and voluntarily waving his rights. Cole then admitted that he had accumulated two prior, unrelated felony convictions for possession of marijuana or hashish and a prior, unrelated felony conviction for theft.

Cole is challenging the validity of his status as a habitual offender after he pleaded guilty to such enhancement and is not challenging the trial court's exercise of sentencing discretion. In Tumulty v. State, 666 N.E.2d 394 (Ind.1996), our Supreme Court addressed the issue of whether a defendant could directly appeal the trial court's acceptance of a guilty plea to a habitual offender allegation on the ground that such lacked a factual basis. The Court noted that one consequence of pleading guilty is restriction of the ability to challenge the conviction on direct appeal. The Court found this restriction applicable to claims such as that raised by the Tumulty, thus treating a habitual offender adjudication following a guilty plea in the same manner as a conviction. The Court held that the vehicle for relief in such situations is found in Ind. Post-Conviction Rule 1. Because Cole admitted to his status as a habitual offender, his challenge is not subject to review on direct appeal. Cole's argument in this regard is dismissed.

Judgment affirmed in part, reversed in part, dismissed in part, and remanded.

RILEY, J., and MATHIAS, J., concur.

      . Ind.Code Ann. § 35-43-2-1 (West, Westlaw current through 2011 1st Regular Sess.).

      . Ind.Code Ann. § 35-42-51 (West, Westlaw current through 2011 1st Regular Sess.).

      . LC. § 35-42-3-3 (West, Westlaw current through 2011 1st Regular Sess.).

      . Ind.Code Ann. § 35-45-2-1 (West, Westlaw current through 2011 1st Regular Sess.).

      . ILC. § 35-43-4-2 (West, Westlaw current through 2011 1st Regular Sess.).

      . LC. § 35-45-9-3 (West, Westlaw current through 2011 1st Regular Sess.).

      . Ind.Code Ann. § 35-47-21 (West, Westlaw current through 2011 1st Regular Sess.).

      . Ind.Code Ann. § 35-50-2-8 (West, Westlaw current through 2011 1st Regular Sess.).

      . On this particular night, there were only two emergency calls to the area: Sergeant Koch's request for assistance in his pursuit of the fleeing vehicle that had been parked outside of Ayers's home, and the subsequent report of the home invasion/robbery at Ayers's home.

      . The enhancements included a habitual offender allegation, carrying a handgun without a license with a prior conviction, carrying a handgun without a license after a felony conviction, and criminal gang activity.

      . The trial court entered a judgment of conviction for theft, but imposed no sentence thereon, finding that it merged with the burglary and robbery convictions.

      . Cole's reliance upon Weiss v. State, 903 N.E.2d 557 (Ind.Ct.App.2009), trans. denied, is unavailing. The procedural posture of Weiss was an appeal following the denial of Weiss's petition for post-conviction relief, not a direct appeal challenge to the validity of his status as a habitual offender following a guilty plea. In this vein, Weiss does not conflict with Tumulty.


source: Caselaw Access Project

author: MATHIAS, Judge.

license: Public Domain

text:
    CITY OF GARY and Gary Sanitation, District, Appellants, v. INDIANA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT and City of Hobart, Appellees.
    No. 49A02-1106-MI-553.
    Court of Appeals of Indiana.
    May 17, 2012.

      E. Sean Griggs, Fredric P. Andes, David T. Ballard, Barnes & Thornburg, LLP, Indianapolis, IN, Attorneys for Appellants.
    Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appeliee Indiana Department of Environmental Management.
    Joseph P. Allegretti, Adam J. Sedia, Ru-bino, Ruman, Crosmer, Smith, Sersic & Polen, Dyer, IN, Attorneys for Appellee City of Hobart.
   OPINION

MATHIAS, Judge.

The City of Gary and the Gary Sanitation District (collectively "Gary") appeal the Marion Superior Court's order affirming the order of the Office of Environmental Adjudication, which upheld the Indiana Department of Environmental Management's ("IDEM") decision to issue a permit to the City of Hobart to operate a new wastewater treatment plant. Gary appeals and raises several issues, which we consolidate into the following two:

I. Whether IDEM's interpretation of 327 Indiana Administrative Code section 5-2-11.7 is reasonable; and,
II. Whether IDEM's decision to issue the permit was arbitrary, capricious, and otherwise not in accordance with the law or is unsupported by substantial evidence.

We affirm.

Facts and Procedural History

The City of Hobart's wastewater is currently treated both at Gary's wastewater treatment facility and at its own, aging Nob Hill wastewater treatment facility. Hobart pays Gary for its use of Gary's facility. Hobart's Nob Hill facility discharges into a tributary of the Deep River and consistently struggles to stay within its permit limits. Deep River is an impaired water source for mercury.

Gary utilizes a collection system of stormwater and sanitary sewers that are combined in part. The system is designed with a number of combined sewer overflows which routinely discharge untreated wastewater into the Grand Calumet and Little Calumet rivers during wet weather. Both rivers are tributaries to Lake Michigan, as is the Deep River.

On some date prior to April 1, 2004, Hobart requested a permit to construct a new 4.8 million gallon per day wastewater treatment plant. The proposed plant would allow it to shut down the Nob Hill facility and disconnect from the Gary facility. On April 1, 2004, IDEM issued the requested National Pollutant Discharge Elimination System Permit ("the Hobart permit") granting Hobart permission to operate a new wastewater treatment plant to be constructed along the Deep River.

The permitted mereury limits for the proposed Hobart facility are a daily maximum limit of 3.2 parts per trillion ("ppt") and a monthly average of 1.3 ppt per day. These limits are substantially less than the limits currently permitted at the Gary facility. Because the new Hobart facility will not utilize combined sewer overflows, it would completely avoid the discharge of untreated sewage.

Shortly after IDEM issued a permit for the construction of the Hobart facility, Gary filed a petition for administrative review of the Hobart permit with the Indiana Office of Environmental Adjudication. On January 19, 2010, the environmental law judge issued its findings of fact, conclusions of law, and final order in favor of IDEM and Hobart. The environmental law judge concluded that the mercury discharge limits in the Hobart permit would result in an overall improvement in water quality, and IDEM's decision to issue the permit complied with applicable law.

Gary then filed a verified petition for Judicial review in Marion Superior Court. After briefing and oral argument, the trial court issued its findings of fact and conclusions of law on March 26, 2011. As is noted in the trial court's findings and conclusions, the paramount issue in this case is the parties' interpretation of IDEM's anti-degradation requirement for outstanding state resource waters ("OSRWs") found in 327 Indiana Administrative Code 5-2-11.7(a)(2):

(2) For a new or increased discharge of a pollutant or pollutant parameter from a new or existing Great Lakes dischar-ger into a tributary of an OSRW for which a new or increased permit limit would be required:
(A) section 11.38(a) and 11.3(b) of this rule (827 IAC 5-2-11.3) apply to the new or increased discharge of a pollutant or pollutant parameter into the tributary; and
(B) the discharge shall not cause a significant lowering of water quality in the OSRW.
(C) The requirements of this subdivision will be considered to have been met when:
(i) one (1) or more of the items listed in section 11.8(b)(1)(C)(), 11.3(b)(Q1)(C)(ii{)(BB), 11.3(b(1)(OGR)(FF), or 11.3(b)(1)(C)(iii)(II) of this rule (827 IAC 5-2-11.3) apply; or (if) all three (8) of the following are met:
(AA) one (1) or more of the subitems in section 11.3(b)(1)(C)(fi)(AA), 11.3(b)(1)(C)Gii)(CC), 11.3(b)(1)(C){iii)(EE), 11.3(b)(1)(C)G(GG), 11.3(b)(1)(C)(i)(HH), or 11.3(b)(1)(C)(G@)(LL) of this rule (827 IAC 5-2-11.3) apply;
(BB) the applicant demonstrates that the increase is necessary; and
(CC) the public notice requirements in subsection (c)(6) are met; or
(iii) all four (4) of the following are met: ~
. (AA) one (1) or more of the subi-tems in section 11.3(b)(1)(C)@ii)(DD), or 11.3(b)(1)(C)GiD)(KK) of this rule (827 IAC 5-2-11.3) apply;
(BB) the applicant demonstrates that the increase is necessary;
(CC) the applicant demonstrates that it will result in a net environmental improvement; and
(DD) the public notice requirements in subsection (c)(6) are met.
(D) As used in this subdivision, "tributary of an OSRW" includes the upstream segments of a receiving wa-terbody when some or all of the downstream segments of the receiving waterbody are designated as an OSRW.

Throughout these proceedings, Gary has argued that subsections 11.7(a)(2)(A), (B), and (C) must be read in the conjunctive, but IDEM and Hobart have argued that clause 2(C) should be read independently of 2(A) and (B).

The trial court affirmed the environmental law judge's final order, and in doing so, issued its own conclusions of law concerning the parties' interpretations of the regulation. Specifically, the court concluded:

12. 827 IAC 5-2-11.7(a)(2) is written to ensure that the water quality of an OSRW is maintained and protected by applying certain requirements on new or increased discharges into the tributary of the OSRW. It states that for such discharges for which a new or increased permit limit would be required, clauses (A) and (B) will apply.
13. The "and" between (A) and (B) clearly reflects that for such discharges for which a new permit limit would be required both (A) and (B) will apply. There is no "and" connecting clauses (C) and (D) to clauses (A) and (B). Therefore, clauses (C) and (D) must be read independently of (A) and (B).
14. 827 IAC 5-2-11.7(@q)@)(C) simply states that the requirements of subdivision (2) will be considered met by the items listed in clause (C). The items in clause (C) are not the exclusive means for meeting the requirements of subdivision (2). Clause (C) refers to subdivision (2), not to clause (B).
15. IDEM and the [Environmental Law Judge] interpreted subdivision (2) to mean that a new discharge into a tributary of an OSRW for which a new permit limit would be required will have to satisfy clauses (A) and (B), or it can satisfy this rule by meeting the requirements listed in clause (C). The rule does not preclude IDEM from granting a new permit limit if clauses (A) and (B) are met independent of the items listed in clause (C).
16. The [Environmental Law Judge] reasonably concluded that the express language of 327 IAC 5-2-11.7(a)(2)(C) supports IDEM's interpretation. Clause (C) is stated in clear and unambiguous terms. Those terms do not state that clause (C) is the exclusive means by which to determine that 327 IAC 5-2-11.7(a)(2) is met but that satisfying clause (C) is one way to meet the rule requirements.
17. The [Environmental Law Judge] reasonably concluded that Gary's "interpretation of 827 IAC 5-2-11.7(a)(@8) would require stricter requirements for discharge into an OSRW tributary than for discharge directly into an OSRW, contrary to the express, clear terms of the applicable regulations...."

Appellant's App. pp. 18-14.

The trial court also concluded that the Environmental Law Judge reasonably found that the new wastewater treatment plant authorized in the Hobart Permit would comply with more stringent standards than those limits established in the permit governing the operation of the Gary facility as it processes its own waste-water and that of Hobart. And the new Hobart wastewater treatment plant will divert Hobart's raw sewage away from Gary's combined system, thereby preventing the release of Hobart's raw sewage in the effluent that Gary currently discharges during wet weather. Both the Environmental Law Judge and the trial court ultimately concluded that Hobart's construction of a new wastewater treatment plant will result in significant overall environmental benefit to Lake Michigan. Therefore, the trial court affirmed the Final Order of the Office of Environmental Adjudication, and Gary now appeals. Additional facts will be provided as necessary.

Standard of Review

Gary argues that the trial court erroneously affirmed IDEM's decision to issue the Hobart Permit. The Administrative Orders and Procedures Act governs judicial review of an administrative action and is the exclusive means for judicial review of an agency action. Ind.Code § 4-21.5-5-1. A trial court may provide relief from an administrative decision only if the agency action is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to constitutional right, power, privilege, or immunity; (8) in exeess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence. I.C. § 4-21.5-5-14. Importantly, our court grants " 'deference to the administrative agency's findings of fact, [but] no such deference is accorded to the agency's conclusions of law.'" Soames v. Ind. Dep't of Natural Res., 934 N.E.2d 1154, 1158 (Ind.Ct.App.2010), trans. denied (quoting LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind.2000)).

I. Interpreting 327 Indiana Administrative Code section 5-2-11.7(a)(2)

When we interpret administrative regulations, our court applies the same rules of construction that apply to statutes. Dev. Servs. Alts., Inc. v. Ind. Family & Social Servs. Admin., 915 N.E.2d 169, 181 (Ind.Ct.App.2009), trans. denied.

An interpretation of a statute by an administrative agency charged with the duty of enforcing the statute is entitled to great weight, unless this interpretation would be inconsistent with the statute itself.... Deference to an agency's interpretation of a statute becomes a consideration when a statute is ambiguous and susceptible of more than one reasonable interpretation. When a court is faced with two reasonable interpretations of a statute, one of which is supplied by an administrative agency charged with enforcing the statute, the court should defer to the agency. If a court determines that an agency's interpretation is reasonable, it should terminate its analysis and not address the reasonableness of the other party's proposed interpretation. Terminating the analysis recognizes the general policies of acknowledging the expertise of agencies empowered to interpret and enforce statutes and increasing public reliance on agency interpretations. However, an agency's incorrect interpretation of a statute is entitled to no weight. If an 'agency misconstrues a statute, there is no reasonable basis for the agency's ultimate action and the trial court is required to reverse the agency's action as being arbitrary and capricious.

Id. (quoting Pierce v. Ind. Dep't of Correction, 885 N.E.2d 77, 89 (Ind.Ct.App.2008)) (citations and quotation marks omitted and emphasis added).

The threshold issue in this case is whether IDEM reasonably interpreted the antidegradation requirement for OSRWs found in 327 Indiana Administrative Code 5-2-11.7(a)(2):

(2) For a new or increased discharge of a pollutant or pollutant parameter from a new or existing Great Lakes dischar-ger into a tributary of an OSRW for which a new or increased permit limit would be required:
(A) section 11.38(a) and 11.3(b) of this rule (327 IAC 5-2-11.3) apply to the new or increased discharge of a pollutant or pollutant parameter into the tributary; and
(B) the discharge shall not cause a significant lowering of water quality in the OSRW.
(C) The requirements of this subdivision will be considered to have been met when:
(i) one (1) or more of the items listed in section 11.3(b)(1)(C)(@), 11.3(b)(1)(C)(i)(BB), 11.3(b)(D)(O)(iHM)(FEF), or 11.3(b)(1)(C)(iii)(II) of this rule (827 IAC 5-2-11.3) apply; or
(i) all three (8) of the following are met:
(AA) one (1) or more of the subi-tems in section 11.3(b)(1)(C)Gii)(AA), 11.3(b)(1)(C)(@i(CC), 11.3(b)(1)(C)(i)(EE), 11.3(b)(1)(C)(ii)(GG), 11.3(b)(1)(C)(ii)(HH), or of this rule (827 IAC 5-2-11.3) apply;
(BB) the applicant demonstrates that the increase is necessary; and
(CC) the public notice requirements in subsection (c)(6) are met; or
(iii) all four (4) of the following are met:
(AA) one (1) or more of the subi-tems in section 11.3(b)(1)(C)(i)(DD), or 11.3(b){1)(C)(iiD(KK) of this rule (827 IAC 5-2-11.3) apply;
(BB) the applicant demonstrates that the increase is necessary;
(CC) the applicant demonstrates that it will result in a net environmental improvement; and
(DD) the public notice requirements in subsection (c)(6) are met.
(D) As used in this subdivision, "tributary of an OSRW" includes the upstream segments of a receiving wa-terbody when some or all of the downstream segments of the receiving waterbody are designated as an OSRW.

When IDEM issued the Hobart Permit, it applied only subsections 11.7(a)(2)(A) and (B) and determined that the Hobart Permit met those requirements. IDEM declined to apply subsection 11.7(a)(2)(C) and argues that clause (C) should be read independently of clauses 2(A) and (B). Under IDEM's interpretation of the regulation, satisfying clause (C) is simply one of two ways to meet the regulation's requirements.

IDEM's interpretation is consistent with the plain language of the regulation. Clauses (A) and (B) are connected by an "and." Therefore, a "new or increased discharge of a pollutant" for which a new or increased permit limit would be required must comply with both clauses (A) and (B) of the regulation if applied. There is no conjunctive language connecting clauses (A) and (B) to clause (C). And clause (C)'s opening phrase, i.e. "tlhe requirements of this subdivision will be considered to have been met when," implies that the requirements of the subdivision may be satisfied by other means particularly in the absence of any language stating that clause (C) is the exclusive means to determine whether the requirements of subdivision 11.7(a)(2) are met.

In addition, in this particular case, the antidegradation factors cited in clause (C) do not apply to the Hobart Permit's mercury discharges. Clause (C) cites to anti-degradation factors listed in 327 Indiana Administrative Code 5-2-11.3(b). But seetion 11.3(b) applies only to "high quality waters that are not designated as an" OSRW. Because the Deep River is not a "high quality water" to begin with, due to existing levels of mereury pollution, section 11.3(b) is inapplicable to the Hobart Permit. Because the requirements of subdivision 11.7(a)(2)(C) can only be satisfied by applying the specifically cited antidegradation factors enumerated in section 11.3(b), it would be impossible to apply clause (C) to the Hobart Permit. Therefore, it was reasonable for IDEM to conclude that it could satisfy subdivision 11.7(a)(2) by meeting the requirements of clauses (A) and (B) in its consideration of whether to award the Hobart Permit.

Ultimately, IDEM concluded that it must, at a minimum, satisfy subdivision 11.7(a)(2) by meeting the requirements of clauses (A) and (B) or by meeting the requirements in clause (C). Because we conclude that IDEM's interpretation of 327 Indiana Administrative Code 5-2-11.7(a)(2) is reasonable, we conclude our analysis and need not address the reasonableness of Gary's proposed interpretation. See Dev. Servs. Alts., Inc., 915 N.E.2d at 181.

II. The Hobart Permit

Gary also argues that even if IDEM's interpretation of 327 Indiana Administrative Code subdivision 5-2-11.7(a)(2) is reasonable, its decision to issue the Hobart Permit "violated antide-gradation regulations" and "will cause a significant lowering of water quality" in violation of 327 Indiana Administrative Code sections 5-2-11.38(a) and 5-2-11.7(a)(2). Appellant's Br. at 30, 35. Specifically, Gary argues that its own permitted mercury discharges into an OSRW remain unchanged, and therefore, onee Hobart begins discharging mercury from its new wastewater treatment plant "there will be a significant increase of permitted mereu-ry discharges into Lake Michigan[.]" Id. at 30.

Before we specifically consider Gary's argument, we observe that, within the language at issue, "degradation" means:

(1) With respect to an outstanding national resource water, any new or increased discharge of a pollutant or a pollutant parameter, except for a short term, temporary increase.
(2) With respect to an outstanding state resource water, any new or increased discharge of a pollutant or pollutant parameter that results in a significant lowering of water quality for that pollutant or pollutant parameter, unless:
(A) the activity causing the increased discharge:
() results in an overall improvement in water quality in the outstanding state resource water; and
(ii) meets the applicable requirements of 327 IAC 2-1-2(1) and (2) and 327 IAC 2-1.5-4(a) and (b)[.]

Ind.Code § 13-11-2-50.5 (2009). Moreover, the Water Pollution Control Board is required to promulgate rule procedures that will "prevent degradation" and

allow for increases and additions in pollutant loadings from an existing or new discharge if:
(A) there will be an overall improvement in water quality for the outstanding state resource water as described in this section; and
(B) the applicable requirements of 827 IAC 2-1-2(1) and 327 IAC 2-1-2(2) and 327 IAC 2-1.5-4(a) and 827 IAC 2-1.5-4(b) are met.

1.C. $ 13-18-3-2(k) (2009).

A. 327 Indiana Administrative Code section 5-2-11.3(a)

Consistent with these statutory mandates, in its issuance of the Hobart Permit, IDEM was required to comply with the regulations set forth in 327 Indiana Administrative Code section 5-2-11.3(a) and (b) and establish that the new discharge would "not cause a significant lowering of water quality in the OSRW." See 827 TLA.C. § 5-2-11.7. As we noted above, seetion 5-2-11.3(b) applies only to "high quality waters that are not designated as an outstanding state resource water." Due to existing levels of mereury pollution, the Deep River, which empties into an OSRW, is not considered a high quality water. Therefore, only subsection 11.3(a) applies to our consideration of the Hobart Permit.

327 Indiana Administrative Code section 5-2-11.3(a) applies to all waters in the Great Lakes system and provides in pertinent part:

the commissioner shall ensure that the level of water quality necessary to protect existing uses is maintained. In order to achieve this requirement, and consistent with 40 CFR 1831.10, water quality standards use designations must include all existing uses. Controls shall be established as necessary on point and nonpoint sources of pollutants to ensure that the criteria applicable to the designated use are achieved in the water and that any designated use of a downstream water is protected. Where water quality does not support the designated uses of a waterbody or ambient pollutant concentrations are greater than water quality criteria applicable to that waterbody, the commissioner shall not allow a lowering of water quality for the pollutant or pollutants that prevents the attainment of such uses or the water quality criterion.

The environmental law judge specifically found that IDEM's determination that the Hobart Permit met regulations enumerated in 327 Indiana Administrative Code seetion 5-2-11.3(a) was supported by the guidance provided by the Environmental Protection Agency ("EPA") for new discharges into an impaired water in that agency's Supplementary Information Document.

IDEM interpreted 327 IAC 5-2-11.3(a)'s "lowering of water quality" in conformation with [the] EPA's view that a waste-load allocation set equal to the most stringent eriterion applied "end-of-pipe" is permissible. "End-of-pipe" criteria provide no mixing zone for dilution, will contain a lower concentration of the pollutant than the receiving water, and will thus not increase a waterway's pollutant concentration, if not cause the concentration to decrease.

Appellant's App. p. 289.

The environmental law judge's finding is consistent with the EPA's Water Quality Guidance for the Great Lakes System: Supplementary Information Document (hereinafter "the SID"). Specifically, the SID provides in pertinent part:

. [The] EPA believes that limiting discharges from point sources to criteria end-of-pipe is nonetheless appropriate in these circumstances, as discussed below.
Numeric criteria are concentration-based standards designed to protect the aquatic ecosystem and humans from the adverse affects of pollutant discharges that would occur at levels above the criteria. Where the background level of the pollutant in the receiving water is greater than the criteria, the stream is in non-attainment and the aquatie environment or human health is adversely impacted. A point source discharging at criteria end-of-pipe in such situations, however, will contain a lower concentration of the pollutant than the receiving water, and therefore will not increase the pollutant concentration in the waterway. Such a discharge may, in fact, cause the ultimate pollutant concentration in the receiving water to decrease. Where the environmental effects of a pollutant on the aquatic ecosystem or on human health are associated with the concentration of the pollutant in the waterway, limiting discharges from point sources to criteria end-of-pipe in these cireumstances should therefore result in no further degradation of the water-body, and may in fact improve the water quality of the waterbody. ... The Agency therefore believes that establishing limits on point sources under these circumstances at criteria end-of-pipe is consistent with the underlying environmental objectives of the [Clean Water Act].

Id. at 107.

Although the SID also states that "special environmental considerations are present with regard to bioaccumulative [persistent] compounds," which would include mercury discharges, the EPA has authorized the permitting authority to "require more stringent limitations than criteria end-of-pipe in order to provide a requisite level of protection" Id. Gary argues therefore that "IDEM should have considered additional means to limit new mass discharges of BCCs into an impaired water-body such as Deep River, but failed to do so in this case." Appellant's Br. at 39. But there is no evidence in the record establishing whether there were "additional means" available to IDEM to limit new mass discharges of mercury into the Deep River. And in the SID, the EPA does not require the permitting authority to apply further limitations to address mass loading, but leaves that decision to the permitting authority's discretion. Appellant's App. p. 107. Therefore, although IDEM could have imposed an end-of-pipe limit more stringent than the 1.3 ppt wildlife criterion to specifically address mercury as a bioaccumulative chemical of concern, it was not explicitly required to do so.

IDEM's decision to issue the Hobart Permit with an end-of-pipe limit of 1.3 ppt wildlife criterion is consistent with the guidance provided by the EPA in the SID because applying the stringent end-of-pipe criteria for measuring mercury concentrations will result in the addition of mercury to the Deep River at a concentration lower than that of the receiving water. For all of these reasons we conclude that the limits established in the Hobart Permit will not lower the water quality in the Deep River, and therefore does not run afoul of section 5-1-11.3(a).

B. 327 Indiana Administrative Code section 5-2-11.7(a)(2)(B)

Gary also argues that "the new mercury discharge allowed under the Hobart Permit will cause a significant lowering of water quality in violation of" the anti-degradation rule enumerated in 327 Indiana Administrative Code section 5-2-11.7(a)(2)(B). See Appellant's Br. at 82.

(2) For a new or increased discharge of a pollutant or pollutant parameter from a new or existing Great Lakes dischar-ger into a tributary of an OSRW for which a new or increased permit limit would be required: ... (B) the discharge shall not cause a significant lowering of water quality in the OSRW.

To determine whether issuance of the Hobart Permit violates section 11.7(a)(2)(B), IDEM applied its 1998 Non-rule Policy Document, which provides guidance as to what constitutes a "significant lowering of water quality." The document states in pertinent part:

A new or increased discharge into a tributary of Lake Michigan will not cause a significant lowering of water quality in Lake Michigan if any of the following are met: ... The new or increased discharge into a tributary of Lake Michigan is the result of an activity that will result in a significant overall environmental benefit to Lake Michigan.

Appellant's App. p. 305.

With this standard in mind, IDEM presented evidence that the new discharge of mercury was the result of an activity that would result in a significant overall environmental benefit to Lake Michigan. First, we observe that the Hobart Permit's effluent limits for mercury are lower than the existing or ambient levels of mereury in the waterbody. Further, IDEM and the City of Hobart established that the new wastewater treatment plant will treat mercury discharge significantly more effectively than it is currently treated at Hobart's aging Nob Hill plant or at the Gary wastewater treatment plant.

We may reasonably assume, absent contrary evidence in the record, that Gary's mercury discharges will decrease when Hobart's sewage is no longer treated at Gary's wastewater facility. But Gary suggests that it might add new sources of wastewater after it ceases treating Hobart's wastewater. Gary correctly observes that if Gary continues to discharge mercury at its current permit limits, Le. a monthly average of 30 ppt, the additional mereury discharge allowed from the Hobart wastewater treatment plant will in-erease the amount of mercury discharged into the OSRW, ie. Lake Michigan. This would result in a lowering a water quality, but only as it pertains to the amount of mercury discharged into the OSRW and its tributaries.

Even though Gary may continue to discharge mercury at its current permit limits, the environmental law judge concluded that the Hobart Permit will result in significant overall environmental benefit to the OSRW, and the evidence supports that conclusion. In addition to treating mereu-ry discharge more effectively, construction of Hobart's new wastewater treatment facility will allow the city to close the Nob Hill wastewater treatment plant, a facility that has consistently not met its permit obligations. And Hobart's raw sewage will no longer utilize Gary's combined sewer overflows, which will avoid the discharge of untreated sewage during wet weather. The discharge of untreated sewage releases pollutants such as mereury, E. Coli, copper, and ammonia-nitrogen into the waterways The issued permit will require the new Hobart wastewater treatment plant to apply more stringent standards when treating sewage than the standards in effect at Gary's facility.

Conclusion

We conclude that IDEM's decision to issue the Hobart Permit was neither arbitrary nor capricious, and that the decision was in accordance with the law and supported by substantial evidence. First, IDEM's interpretation of 327 Indiana Administrative Code section 5-2-11.7(a)(2) was reasonable in that it only required Hobart to comply with subdivision 11.7(a)(2)(A) and (B), but not 11.7(a)(2)(C), in its decision to issue the Hobart Permit. And, although the Hobart Permit allows a new source for discharge of mercury, because Hobart will be able to close its non-compliant Nob Hill Plant and treat its wastewater more effectively than it is currently treated by Gary's facility, the Hobart Permit will result in an overall environmental benefit to and will not cause a significant lowering of water quality in Lake Michigan and its tributary, the Deep River. Therefore, IDEM's decision to issue the Hobart Permit does not violate the regulations set forth in 327 Indiana Administrative Code sections 5-2-11.3(a) and 11.7(a)(2)(A) and (B).

Affirmed.

FRIEDLANDER, J., and RILEY, J., concur.

      . "The Federal Clean Water Act ("CWA") prohibits 'the discharge of any pollutant' into 'waters of the United States' without a permit. Similarly, Indiana state environmental law generally requires a permit to discharge pollutants into 'waters of the state.' " Ind. Dept. of Envtl. Mgmt. v. Twin Eagle, LLC, 798 N.E.2d 839 (Ind.2003) (citing 327 Ind. Admin. Code 5-2-2 (2001) ("Any discharge of pollutants into waters of the state as a point source discharge, ... is prohibited unless in conformity with a valid NPDES permit obtained prior to the discharge.")).

      . Lake Michigan is classified as an OSRW.

      . The Water Pollution Control Board operates under IDEM's umbrella but "with separate and distinct statutory authority. The [Board] in particular is assigned the duties of adopting rules 'for the control and prevention of pollution' in Indiana's waters." Twin Eagle, 798 N.E.2d at 845 (citing I.C. § 13-18-3-1).

      . Indiana's antidegradation policy, which is partially implemented by 327 Indiana Administrative Code section 5-2-1 1.3, provides:
      For all surface waters of the state within the Great Lakes system, existing instream water uses and the level of water quality necessary to protect existing uses shall be maintained and protected. Where designated uses of the waterbody are impaired, there shall be no lowering of the water quality with respect to the pollutant or pollutants that are causing the impairment.
      327 LA.C. § 2-1.5-4(a).

      . Gary argues that the section of the SID discussed above does not support IDEM's arguments "because that section does not relate to antidegradation." Appellant's Br. at 37. Contrary to Gary's assertion, application of that section of the SID is relevant to determining whether the new discharge of mercury into the Deep River will result in a significant lowering of water quality. Because the environmental law judge correctly determined that issuance of the Hobart Permit will not result in a lowering of water quality, but will result in a significant overall environmental benefit, an antidegradation analysis is not required. Only section 5-2-11.3(b) requires an anti-degradation analysis before an action causing a "significant lowering of water quality occurs." But as we have previously held, section 11.3(b) does not apply in the case before us.

      . We reject Gary's argument that the Nonrule Policy document was no longer valid after 327 Indiana Administrative Code 5-2-11.7(a) was amended to add clause 5-2-1 1.7(a)(2)(C). IDEM's use of the document was proper as its contents were superseded only to the extent that it conflicts with 11.7(a)(2)(C), which IDEM appropriately did not apply in its decision to issue the Hobart Permit.

      . Gary argues that IDEM's argument concerning the closure of the Nob Hill facility was a post hoc agency rationalization because IDEM "did not raise this reasoning in support of the Hobart Permit at the time of its issuance." Appellant's Br. at 33. We disagree. Closure of the Nob Hill facility was referenced in the Hobart Permit. Appellant's App. p. 155. Further, IDEM necessarily discussed the benefits of closing the Nob Hill facility before the Environmental Law Judge because her findings of facts and conclusions of law specifically discuss the Nob Hill facility, and its closure and accompanying beneficial environmental impact are cited as reasons for sustaining IDEM's decision to issue the permit. For these reasons, we conclude that citing the closure of the Nob Hill facility to support IDEM's decision to issue the permit was not a post hoc agency rationalization. See Dev. Servs. Alts., Inc., 915 N.E.2d at 184 (stating "that it is the reviewing court, and not the administrative agency, that is barred from considering post hoc rationalizations").


text:
    In re the ADOPTION OF S.J., R.W., Appellant, v. G.C. and J.C., Appellees.
    No. 04A03-1110-AD-449.
    Court of Appeals of Indiana.
    May 18, 2012.

      Jon P. MeCarty, Covington, IN, Attorney for Appellant.
    Judson G. Barce, Hunter J. Reece, Bonnie J. Adams, Barce & Reece, P.C., Fowler, IN, Attorneys for Appellees.
   OPINION

MATHIAS, Judge.

R.W. ("Father") appeals from the trial court's order concluding that Father's consent to the adoption of S.J., Father's biological child, was not required. Concluding that the order from which Father appeals is neither a final judgment nor an appealable interlocutory order, we dismiss this appeal sua sponte.

Facts and Procedural History

S.J. was born out of wedlock to B.R.L. ("Mother") in May of 2005. Although Father has not legally established paternity, Mother and Father agree that Father is S.J.'s biological father. Father's stepsister, J.C., and her husband, G.C., were appointed as S.J.'s legal guardians in 2008 and have had continued custody of S.J. since that time. J.C. and G.C. (collectively, "the Petitioners") filed a petition to adopt S.J. on June 15, 2011. Father filed his "Motion to Contest Adoption" on July 8, 2011. On September 2, 2011, the trial court held a hearing on the issue of whether Father's consent to the adoption was required. Thereafter, on September 2, 2011, the trial court issued an order concluding that Father's consent to the adoption was not required. The court also indicated that "[iJf all other statutory requirements are met, this Petition may proceed to a final hearing." Appellant's App. p. 6. Father now appeals.

Discussion and Decision

This court has jurisdiction in all appeals from final judgments. Ind. Appellate Rule 5(A). A "final judgment" is one which "disposes of all claims as to all parties[.]"' App. R. 2(H)(1). See also Bueter v. Brinkman, 776 N.E.2d 910, 912-13 (Ind.Ct.App.2002) (a final judgment is one that "disposes of all issues as to all parties, to the full extent of the court to dispose of the same, and puts an end to the particular case" and "reserves no further question or direction for future determination" (internal quotations and citations omitted)). Whether an order is a final judgment governs this court's subject matter jurisdiction. Georgos v. Jackson, 790 N.E.2d 448, 451 (Ind.2003). The lack of appellate subject matter jurisdiction may be raised at any time, and where the parties do not raise the issue, this court may consider it sua sponte. Id.

Here, the trial court's September 9, 2011 order concluding that Father's consent to the adoption was not required did not dispose of all issues as to all parties or put an end to the case because the relief requested in the adoption petition, ie. the adoption of S.J., was neither granted nor denied. Rather, the trial court ruled that, provided all other statutory requirements for the adoption were met, the petition could proceed to a final hearing. Accordingly, the trial court's September 9, 2011 order concluding that Father's consent to the adoption was not required is not a final judgment within the meaning of Appellate Rule 2(H)(1) because it left the question of whether the adoption petition would be granted for future determination.

However, Trial Rule 54(B) provides, in relevant part, that:

When more than one [1] claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.... A judgment as to one or more but fewer than all of the claims or parties is final when the court in writing expressly determines that there is no just reason for delay, and in writing expressly directs entry of judgment, and an appeal may be taken upon this or other issues resolved by the judgment; but in other cases a judgment, decision or order as to less than all the claims and parties is not final.

(emphasis added). See also Appellate Rule 2(H)(2) (providing that a judgment is final if the trial court in writing expressly determines under Trial Rule 54(B) that there is no just reason for delay and in writing expressly directs the entry of judgment).

In Martin v. Amoco Oil Co., our supreme court adopted a "bright line" rule requiring strict compliance with Trial Rule 54(B) before a trial court's order disposing of less than all claims as to all parties will be deemed final and appealable as of right. 696 N.E.2d 383, 385 (Ind.1998). The court explained that this formalistic approach "removes uncertainties about when a party should appeal, thus minimizing the risk that an appeal will be dismissed as premature or that the right to appeal will be inadvertently lost." Id. The court reasoned further that strict compliance with the rule "place[s] the discretion of deciding when the facts indicate that a judgment should be deemed final in the hands of the individual best able to make such decisions-the trial judge." Id. Thus, unless a trial court uses the "magic language" set forth in Trial Rule 54(B), an order disposing of fewer than all claims as to all parties remains interlocutory in nature. See id.; Forman v. Penn, 938 N.E.2d 287, 289-90 (Ind.Ct.App.2010) (dismissing appeal), appeal reinstated and trial court judgment aff'd on reh'g, 945 N.E.2d 717 (Ind.Ct.App.2011), trans. denied. In this case, the trial court's September 9, 2011 order concluding that Father's consent to the adoption was not required neither directed the entry of judgment nor found that there was no just reason for delay. Because the order did not meet the strict criteria set forth in Appellate Rule 54(B), the order cannot be deemed final under that rule.

Because the trial court's September 9, 2011 order was not a final judgment, Father cannot appeal unless the order is an appealable interlocutory order. See Bacon v. Bacon, 877 N.E.2d 801, 804 (Ind.Ct.App.2007), trans. demied. "An interlocutory order is one made before a final hearing on the merits and requires something to be done or observed but does not determine the entire controversy." Id. This court has "jurisdiction over appeals of interlocutory orders under Rule 14[.]" App. R. 5(B).

Under Appellate Rule 14(A), certain interlocutory orders may be appealed as a matter of right. Such appeals must be expressly authorized, and that authorization is to be strictly construed. Bacon, 877 N.E.2d at 804. None of the grounds for interlocutory appeals set forth in Appellate Rule 14(A) apply to the case before us. Therefore, Father is not entitled to an interlocutory appeal as a matter of right. Additionally, under Appellate Rule 14(B), interlocutory orders may be appealed "if the trial court certifies its order and the Court of Appeals accepts jurisdiction over the appeal." App. R. 14(B). However, no such certification and acceptance took place here. Thus, the trial court's September 9, 2011 order is not appealable under Appellate Rule 14(B).

For all of these reasons, we conclude that the order from which Father appeals is neither a final judgment nor an appeal-able interlocutory order. This court is therefore without subject matter jurisdiction to entertain Father's appeal.

Dismissed.

ROBB, C.J., and BAILEY, J., concur.

      . Neither the Petitioners' petition to adopt S.J. nor Father's motion to contest the adoption have been included in the Appellant's Appendix.


author: BAKER, Judge.

text:
    In the Matter of V.H., Minor Child, Child in Need of Services, J.H., Mother, Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner.
    No. 49A02-1110-JC-947.
    Court of Appeals of Indiana.
    May 22, 2012.

      Amy Karozos, Greenwood, IN, Attorney for Appellant.
    Robert J. Henke, DCS Central Administration, Indianapolis, IN, Patrick M. Rhodes, Indiana Dept of Child Services, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

Here, a single mother of two teenage daughters was faced with a situation that is, unfortunately, not that uncommon to many parents of teenagers. On two occasions, the mother's sixteen-year-old daughter, who outweighed her by about thirty pounds, became physically aggressive with her during an argument. To diffuse the situation, the mother called the police, who then reported the incidents to the Department of Child Services (DCS). The DCS investigated, and although it was determined that the daughter had been the aggressor in both incidents, the DCS filed a petition alleging that the daughter was a Child in Need of Services (CHINS) because of the mother's failure to provide her with necessary care. The juvenile court granted this petition and ordered the mother to participate in services that were unrelated to the CHINS adjudication. We hold that the adjudication and the participation decree are erroneous.

J.H. (Mother) appeals the juvenile court's order adjudicating her sixteen-year-old daughter, V.H., to be a CHINS. Mother argues that the DCS failed to prove that V.H. is a CHINS because there is no evidence that VH. has suffered abuse or neglect or that the coercive intervention of the court is necessary for her to provide V.H. with the help that she needs to address her behavioral issues. Mother also contends that the juvenile court erred by ordering her to complete services unrelated to the CHINS adjudication. Concluding that the juvenile court erred by adjudicating V.H. to be a CHINS and by ordering services in the participation decree that were unrelated to the adjudication, we reverse the adjudication and vacate the participation decree.

FACTS

Mother has two daughters, V.H., born on May 10, 1995, and I.H., born on April 19, 1998. Mother is a single parent and V.H.'s father is deceased. Since 2008, Mother has worked full-time in a clerical position for the Family and Social Services Administration, Division of Family Resources and recently completed her master's degree in business.

V.H. has had behavioral problems for the past twelve years; however, her behavior did not become physically violent until she reached puberty. Mother has worked with V.H.'s school for years, and V.H. has been identified as eligible for special education services under the Individuals with Disabilities Education Act (IDEA). Additionally, V.H. has an Individualized Education Plan (IEP), which is the product of a collaborative effort between Mother and the school to address V.H.'s behavioral and educational needs. V.H. was participating in the online PLATO program at school, which is a "curriculum that is designed just for each individual child." Tr. p. 34.

On March 27, 2011, when V.H. was fifteen years old, Mother took her to Galla-hue Mental Health Services for an initial assessment. On March 31, 2011, V.H. was diagnosed by Dr. Nathan Larson with Oppositional Defiant Disorder, which is characterized by a "[plattern of negativistic/hostile/defiant behavior" that has "lasted at least 6 months" and VH. "often loses temper, often argues with adults, often actively defies or refuses to comply with rules, often deliberately annoys people, often blames others for his/her mistakes or misbehavior, is often touchy or easily annoyed, is often angry and resentful, is often spiteful or vindictive." Ex. A. p. 5. V.H.'s treatment plan was individual and group therapy. V.H. attended three group sessions before the DCS became involved.

On April 16, 2011, Mother contacted the police when VH. became physically aggressive during an argument. Mother is a petite woman, weighing about 105 pounds, and V.H. outweighs her by approximately thirty pounds. DCS Family Case Manager, Daniel Sparling, was contacted after receiving a report, which "alleged that there was a physical altercation involving both [Mother] and [V.H.] and that [V.H.] was a vietim of physical abuse." Tr. p. 7. Sparling discussed the incident with Mother, who explained that she and V.M. had had an argument over a computer cord and that during the course of the argument, V.M. attempted to get Mother's computer from her room. When Mother tried to block her, V.M. began pushing her. Mother pushed back but claimed she did not remember choking VH. Eventually, V.H. took the keys to Mother's vehicle and turned on the engine until the vehicle ran out of fuel.

During Mother's conversation with Sparling, she indicated that V.H. was not being cooperative about attending group counseling. Sparling ended the first assessment by providing Mother with "some informal resources" but "had not closed that investigation out when [he] got the second report yet." Tr. p. 9.

The DCS received a second report on May 1, 2011. The second report alleged that there had been another physical altercation between Mother and V.H. and that V.H. had been arrested and placed at Lu-therwood Emergency Shelter by the arresting officer. When Mother was contacted to pick up V.H., she could not be reached. When Sparling discussed these allegations with Mother, she stated that there had been another physical altercation between her and V.H. and that she had called the police. Mother stated that she was not planning to pick up V.H. at that time because she wanted V.H. to be involved in "some form of counseling service before returning to her home." Tr. p. 10.

V.H. returned to Mother's home at the end of May, but the DCS investigation "substantiated abandonment as a form of neglect against [Mother] because she did not pick up [V.H.] from Lutherwood." Id. at 12. Nevertheless, the DCS investigation "clearly indicated that in these altercations that [V.H.] was the aggressor." Id. at 18.

On May 4, 2011, the DCS filed a petition alleging that V.H. and IH. were CHINS because of Mother's neglect. On July 7, 2011, DCS moved to dismiss the CHINS petition as to IH., which was granted.

The DCS proceeded on the allegation that V.H. was a CHINS because of neglect. At the CHINS factfinding hearing on August 11, 2011, and at the CHINS dispositional hearing on October 6, 2011, Mother denied the allegation, arguing that VH. was not a CHINS because she was providing for V.H.'s needs without the coercive intervention of the court and that she was not unwilling or unable to provide necessary food, clothing, shelter, medical care, education, or supervision of V.H. In the alternative, Mother argued that if the juvenile court determined that V.H. was a CHINS, that the court make the finding under Indiana Code section 31-34-1-6 (CHINS 6), which applies when a child is a danger to themselves or others without a finding of parental abuse or neglect.

At the August 11 factfinding hearing, Sharon Bowland, a DCS family case manager, testified that the family required homebased counseling and either counseling or mental health treatment for V.H. Bowland also testified that the DCS had homebased counseling in place and that the DCS had ordered counseling at Galla-hue, but did not know if it had started. More particularly, Bowland testified as follows:

THE COURT: What about the individual counseling for [V.H.]?
A. I don't know for sure if she, how many appointments have been set up. I know that that when I talked with mom before they had not happened yet. I got a call from Gallahue that they had the family on record and that they would be setting up appointments.
THE COURT: You can't, okay. You don't know for sure if they've ..
A. Right.
THE COURT: ..started yet?
A. Right.

Tr. p. 21. Bowland also recounted a visit during which she discovered that although the home was "appropriate," there were no beds for V.H. and LH. and that Mother was "relieved" that DCS could help her acquire beds for her daughters. Id. at 18.

Mother testified about taking V.H. to Gallahue before the DCS's involvement. Mother acknowledged that VH. had stopped attending group counseling, but testified that after the DCS became involved, she tried to get V.H. signed up again at Gallahue. Mother was unsuceessful, insofar as "[V.H.] was a CHINS case that her family case manager would have to schedule that because they wanted to make sure 'they got paid." Tr. p. 83. Mother explained that although Medicaid had initially paid for V.H.'s group counseling, because she was a CHINS case, "they wanted to make sure the funds came from the other side." Id.

On eross-examination, when Mother was pressed about needing DCS services because she wanted a psychological evaluation performed on V.H., she responded as follows:

Okay, at this point we've been dealing with DCS since May. Mr. Beals was supposed to initiate the Gallahue back in June. This never happened. We got switched to a new family case manager as of July the 8th. Called Mrs. Bowland several times requesting the evaluation, the Gallahue situation questioning whether the referral had been sent, when it had been sent, who sent it. I also called the supervisor to ask her also pertaining to the Gallahue referral.
* * *
They, no one ever called me back.

Tr. p. 49-50.

In the juvenile court's conclusions of law, which were contained in its order adjudicating V.H. a CHIN, it determined that:

6. [V.H.] is a child in need of services because [her] physical or mental condition is seriously impaired or seriously endangered as a result of [Mother's] inability to supply [V.H.] with necessary medical care and supervision to adequately address [V.H.]'s behavior issues. Despite [Mother]'s individual efforts to help [V.H.] through the years, [Mother] has been unable to provide [V.H.] with adequate medical and/or mental health care and supervision which has resulted in [V.H.]'s behavior worsening rather than improving.
7. Services are necessary to ensure [V.H.]'s care and to provide her with treatment that she needs, which, as of the day of trial, [V.H.] was not receiving and were unlikely to be provided or accepted without the coercive intervention of the court. The reasons for MCDCS' involvement with the family have not been remedied in that even though [V.H.] has been returned to [Mother]'s care, homebase services are ongoing and no recommendation for sue-cessful closure has occurred. Furthermore, [V.H.] has not completed treatment with Gallahue and she has yet to have her psychological evaluation, the recommendations of which, if any, are unknown. Finally, [Mother], by herself and without assistance, is unable to ensure that compliance with any and all recommended treatment for [V.H.] will occur. Accordingly, the coercive intervention of this court is necessary.

Appellant's App. p. 67-68.

The dispositional hearing was held on October 6, 2011, with a different magistrate presiding. At the beginning of the hearing, Mother requested a continuance based on the fact that the transcript had not been prepared from the August 11 factfinding hearing. Mother explained that the transcript was necessary because when she was asked about wanting a psychological evaluation for V.H. through the DCS, Mother was told that it would take three to six months to get a psychological evaluation. Tr. p. 60-61. Consequently, Mother contacted her primary care physician and got V.H. a psychological evaluation on her own, and was "just waiting on the final report that is due back the 17th of this month." Tr. p. 61.

The juvenile court failed to see the necessity of the transcript from the factfind-ing hearing, noting that "it's not clear to the Court why the transeript would affect recommendations but mom's here to make any additional recommendations or to dispute any of DCS [sic]} recommendations.... DCS is recommending standard services." Id. These included:

maintain regular contact with the case manager, notify criminal or arrest charges, case manager visits to see the home, written authorizations to release information, remain in the county, maintain suitable housing and source of income, prohibiting any illegal use of drugs, participate and successfully complete home-based counseling as arranged by the family case manager, complete a parenting assessment and all recommendations, meet the child's medical and mental health needs, designate a disciplinarian and ensure that [V.H.] completes a psychiatric evaluation which mother reports is already completed and that she follows any recommendations of that evaluation, including any individual therapy for her.

Tr. p. 69-70. Mother was also ordered to reimburse the DCS $25 a week. Mother now appeals.

DISCUSSION AND DECISION

I. Standard of Review

The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects the fundamental rights of parents in directing the care, custody, and control of their children. In re T.H., 856 N.E.2d 1247, 1250 (Ind.Ct.App.2006). However, these rights are limited, and the State has the authority under its parens patriae power to intervene when necessary to protect the health and safety of children. Id.

As with the termination of parental rights, the purpose of a CHINS adjudication is to protect children rather than to punish parents. In re N.E., 919 N.E.2d 102, 106 (Ind.2010). To that end, a juvenile court need not wait until a tragedy occurs to intervene. In re A.H., 913 N.E.2d 303, 305 (Ind.Ct.App.2009). To be sure, a child is a CHINS when the child's condition demonstrates that a child needs care, treatment, or rehabilitation that the child is not receiving, and is unlikely to be provided or accepted, while in the care of his or her parents, without the coercive intervention of the juvenile court. Ind. Code § 31-34-1 et seq.

Here, because the juvenile court entered findings of fact and conclusions of law, we apply a two-tiered standard of review. Parmeter v. Cass Cnty. Dep't of Child Servs., 878 N.E.2d 444, 450 (Ind.Ct.App.2007). We first consider whether the evidence supports the factual findings and then whether the findings support the judgment. Id. While we defer substantially to findings of fact, we do not do so to conclusions of law. Id.

IIL Sufficiency of the Evidence

Although Mother attacks particular findings of fact, she essentially argues that the evidence was insufficient to support the juvenile court's determination that V.H. was a CHINS. The erux of Mother's arguments is that the DCS failed to prove that she neglected V.H. or that the coercive intervention of the court is necessary, inasmuch as she has been providing for V.H.'s needs, including treatment for her behavior problems. Indiana Code section 31-34-1-1-provides:

A child is a [CHINS] if before the child becomes eighteen (18) years of age:

(1) the child's physical or mental condition is seriously impaired or seriously endangered as a result of the inability, refusal, or neglect of the child's parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, medical care, education, or supervision; and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the coercive intervention of the court.

DCS has the burden of proving by a preponderance of the evidence that a child is a CHINS. I.C. § 31-34-12-3.

In this case, V.H. had an IEP through school, describing how she would access the general education curriculum and the special education services needed to participate in school. Mother was involved in developing V.H.'s IEP. Tr. p. 34. Like, wise, because of V.H.'s behavioral problems, a Behavior Intervention Plan was developed through school and Mother played an active role its development as well. Ex. C.

After V.H.'s behavior problems escalated, Mother took VH. to Gallahue on March 27, 2011 for an initial assessment. On March 31, 2011, V.H. was diagnosed with Oppositional Defiant Disorder, and her treatment plan included individual and group therapy. Ex. A. p. 5. V.H. attended three group sessions before the DCS became involved on April 16, 2011, after Mother called the police because V.H. had become physically aggressive with her.

Before the DCS could make a finding regarding the April 16 incident, Mother called the police a second time on May 1, 2011, after V.H. had become physically aggressive with her. VH. was arrested and taken to Lutherwood, and Mother admittedly refused to pick up V.H. until V.H. had been offered some counseling services. Tr. p. 10.

DCS filed a CHINS petition on May 4, 2011. Thereafter, Gallahue told Mother that she would need to work through her family case manager to schedule appointments for V.H. When the family case manager, Bowland, was questioned at the August 11, 2011 factfinding hearing about scheduling V.H.'s appointments with Galla-hue, she did not know if they had been scheduled or when they would be scheduled. Tr. p. 21.

Under these facts and cireumstances, it is apparent that Mother, who is a working single parent, was addressing V.H.'s behavioral issues. This is something for which we should applaud parents rather than condemn them through coercive action. Indeed, even after the DCS became involved, Mother contacted her primary care physician on her own and scheduled V.H. for a psychological evaluation after she learned that the DCS could not schedule one through Gallahue for three to six months. Tr. p. 60-61. In light of this evidence, we cannot agree that V.H. needs care, treatment, or rehabilitation that she is not receiving and is unlikely to be provided or accepted without the coercive intervention of the court. Accordingly, we reverse the juvenile court's order adjudicating V.H. as a CHINS.

III Participation Order

Mother also appeals the juvenile court's participation order, arguing that it required her to accept services and satisfy requirements unrelated to the CHINS ad-Jjudication. Because we have reversed the juvenile court's order adjudicating V.H. a CHINS, we also vacate the participation order that resulted from the October 6, 2011 dispositional hearing. However, even if we had affirmed the juvenile court's CHINS adjudication, the participation order would have been vacated, insofar as there were procedural errors made and requirements ordered that were unrelated to the CHINS adjudication.

Initially, we note that a different magistrate presided over the dispositional hearing. The magistrate did not have the benefit of the transcript from the factfinding hearing, a detail which troubled Mother leading her to move for a continuance until the transcript was completed and available. The juvenile court failed to see the relevance of the transcript because the DCS was only recommending "standard services." Tr. p. 61. We cannot agree with this determination, inasmuch as the evidence that was produced at the factfind-ing hearing should have influenced the services and requirements that were ordered in the participation order. Accordingly, the transcript from the factfinding hearing was relevant at the dispositional hearing, particularly in light of the fact that the dispositional hearing was presided over by a different magistrate.

In a related matter, the juvenile court ordered services that were labeled as "standard services." Tr. p. 61. In A.C. v. Marion County Department of Child Services, this court vacated portions of a participation decree because it utilized boilerplate language requiring the mother to undergo services where there was no evidence in the record to support the need for those services. 905 N.E.2d 456, 464-65 (Ind.Ct.App.2009). We cautioned that:

The use of boilerplate language can make the citizenry cynical about the requirements necessary to achieve the goals of a CHINS adjudication. Although the juvenile court has broad discretion in determining what programs and services in which a parent is required to participate, the requirements must relate to some behavior or cireum-stance 'that was revealed by the evidence.... Indeed, forcing unnecessary requirements upon parents whose children have been adjudicated as CHINS could set them up for failure with the end result being not only a failure to achieve the goal of reunification, but potentially, the termination of parental rights.

Id.

Here, Mother was ordered to permit the DCS family case manager to make unannounced visits "to ensure the safety of the child" when V.H.'s safety was not an issue. Appellant's App. p. 88. Indeed, VH. was determined to be the aggressor in both altercations with Mother. Tr. p. 13. Similarly, Mother was ordered to maintain suitable housing and a source of income when her home was determined to be appropriate and she has been and remains employed full-time. Id. at 18. Mother was also ordered to put into place a protection plan to protect V.H. from abuse or neglect from any person when there is no evidence that V.H. has suffered abuse or neglect from anyone. Mother was ordered to reimburse the DCS $25 a week for services, even though Mother had to schedule V.H.'s psychological evaluation because the DCS failed to do so in a timely manner. In short, Mother was ordered to complete requirements and accept services that were not supported by the record because the DCS recommended only "standard services." Tr. p. 61. We discourage the juvenile courts from using such boilerplate requirements.

The judgment of the juvenile court is reversed and remanded with instructions to vacate the participation order.

KIRSCH, J., and BROWN, J., concur.