author: Crone, Judge.

text:
    CITY OF CHARLESTOWN, Indiana, and Charlestown Board of Public Works and Safety, Appellants-Defendants/Cross-Appellees, v. CHARLESTOWN PLEASANT RIDGE NEIGHBORHOOD ASSOCIATION CORPORATION, Joshua Craven, Tina Barnes, David and Ellen Keith, and Bolder Properties, LLC, Appellees-Plaintiffs/Cross-Appellants
    Court of Appeals Case No. 10A01-1712-CT-2896
    Court of Appeals of Indiana.
    FILED September 10, 2018
    Attorneys for Appellants: Bart A. Karwath, Mark J. Crandley, Barnes & Thornburg LLP, Indianapolis, Indiana, Michael Allen Gillenwater, Gillenwater Law Offices, Jeffersonville, Indiana
    Attorneys for Appellees: Jeffrey T. Rowes, Institute for Justice, Austin, Texas, Jeffrey H. Redfern, Institute for Justice, Arlington, Virginia, Keith E. Diggs, Institute for Justice, Tempe, Arizona, Stephen W. Voelker, Voelker Law Office, Jeffersonville, Indiana, Anthony B. Sanders, Institute for Justice, Minneapolis, Minnesota
    Attorneys for amici curiae NOW!, Inc.: J. David Agnew, Lorch Naville Ward LLC, New Albany, Indiana
    The Goldwater Institute : F. Bradford Johnson, Indianapolis, Indiana, Matthew R. Miller, The Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute, Phoenix, Arizona
    F & J Apartments, LLC, Brown Rental Properties, LLC, Cooley Property Management, LLC, Gregory Development, LLC, Josh Gregory, Greg Yeager, Kenneth T. Westmoreland, Jr., Michelle R. Westmoreland, Matthew Shultz, Lisa Shultz, Dale May, Maria Sanchez, and Manuel Hernandez: J. David Agnew, Lorch Naville Ward LLC, New Albany, Indiana, George A. Budd, V, Schad & Schad, P.C., New Albany, Indiana
   Crone, Judge.

Case Summary

[1] Charlestown Pleasant Ridge Neighborhood Association Corporation, Joshua Craven, Tina Barnes, David Keith, Ellen Keith, and Bolder Properties, LLC (collectively "the Homeowners"), filed a motion for preliminary injunction against the City of Charlestown, Indiana, and the Charlestown Board of Public Works and Safety (collectively "the City") with respect to the City's practice of enforcing its Property Maintenance Code ("PMC"). In support of their motion for a preliminary injunction, the Homeowners alleged that the City enforced the PMC in a manner that violated (1) Indiana Code Chapter 36-7-9, also known as the Indiana Unsafe Building Law ("UBL"), (2) the PMC itself, (3) the United States Constitution's Equal Protection Clause, and (4) the Indiana Constitution's Privileges and Immunities Clause. As to the first claim, the trial court found that the City is not required to follow either the UBL or the PMC exclusively. Because the trial court found that the City is not required to follow the UBL, the trial court concluded that the Homeowners are unlikely to succeed on their claim that the City's manner of enforcing the PMC violates the UBL. However, the trial court also concluded that the Homeowners are likely to succeed on their remaining claims. Accordingly, the trial court issued findings of fact and conclusions thereon ("the Appealed Order") and a separate order granting the preliminary injunction.

[2] The City appeals, arguing that the trial court clearly erred in concluding that the Homeowners are likely to succeed on their claims that the City's manner of enforcing the PMC violates the PMC, the Equal Protection Clause, and the Privileges and Immunities Clause. The Homeowners cross-appeal, arguing that the trial court clearly erred in concluding that they are unlikely to succeed on their claim that the City's manner of enforcing the PMC violates the UBL.

[3] The issue raised in the Homeowners' cross-appeal is dispositive at this stage of the proceedings. As to that issue, we conclude that the trial court clearly erred in finding that the City is not required to follow the UBL. Specifically, we conclude that because the City has adopted the UBL, the City is required to act in accordance with its provisions. That does not mean that the PMC is without legal force, but rather that the City is precluded from enforcing the PMC in a manner that is inconsistent with the UBL. Because the trial court found that the City was not required to follow the UBL, the trial court did not address how the UBL impacts the City's enforcement of the PMC. Some of the provisions in the UBL are permissive, others are mandatory. Some provisions of the PMC may conflict with the UBL, some PMC provisions will be compatible with the UBL, and many PMC provisions will address subject matter not covered by the UBL. Therefore, we remand for the trial court to consider how the UBL and the PMC work together in light of our conclusion that the PMC must work within the confines and strictures of the UBL, and to reconsider the Homeowners' claim that the City's enforcement of the PMC violates the UBL. Further, because the trial court decided the Homeowners' remaining three claims based on the erroneous premise that the City was not required to follow the UBL, those claims, if the Homeowners choose to pursue them, will need to be reexamined. Accordingly, we reverse the Appealed Order and the order granting the preliminary injunction and remand for further proceedings consistent with this opinion.

Facts and Procedural History

[4] The undisputed facts show that Pleasant Ridge is a neighborhood within the City of Charlestown. Appealed Order at 3 (finding # 8). The City believes that Pleasant Ridge needs redevelopment. Id. at 4 (# 13). The Association is a nonprofit corporation with approximately fifty members, all of whom are Pleasant Ridge property owners, and the Association itself owns and rents a duplex in Pleasant Ridge. Id. at 2 (# 1). Joshua Craven, Tina Barnes, David Keith, and Ellen Keith are Pleasant Ridge residents and homeowners. Id. (# 2-4). Craven is the president of the Association. Barnes is a member of the Charlestown City Council ("the City Council"). Bolder Properties owns four duplexes in Pleasant Ridge. Id. (# 5).

[5] In 2001, the City Council passed an ordinance adopting the UBL pursuant to Indiana Code Section 36-7-9-3. Id. at 19 (# 85). The UBL provides local governments with procedures to address unsafe buildings and premises but does not set forth specific building safety standards. The UBL defines an "unsafe building" in relevant part as one that is "dangerous to a person or property because of a violation of a statute or ordinance concerning building condition or maintenance." Ind. Code § 36-7-9-4. An "unsafe premises" is an unsafe building and the property it is located on. Id. The UBL authorizes local governments to issue orders to property owners "requiring action relative to any unsafe premises," including "repair or rehabilitation of an unsafe building to bring it into compliance with standards for building condition or maintenance required for human habitation, occupancy, or use by a statute, a rule adopted under IC 4-22-2, or an ordinance." Ind. Code § 36-7-9-5(a)(5). The UBL provides procedural protections for property owners who receive an order to repair or rehabilitate an unsafe building, such as requirements as to the information to be included in an order, a "sufficient time" of ten to sixty days to make repairs before a fine may be imposed, a ten-day period to appeal the order, and limits on the civil penalty for noncompliance with an order to $2500 and on the accrual of such a civil penalty to not more than $1000 every ninety days. Ind. Code §§ 36-7-9-5(b) - (c), -7(a), -7.5(b)-(c).

[6] In 2008, the City Council enacted the PMC, which establishes "minimum requirements and standards" for existing residential and nonresidential structures and premises "to insure public health, safety, and welfare." Ex. Vol. 4 at 6. In addition, the PMC contains provisions to enforce its safety requirements and standards, many of which address the same subject matter as the enforcement provisions in the UBL, such as provisions which govern orders and notice, the imposition of penalties, and the appeals process. Id. at 8-9, 11. However, many PMC enforcement provisions differ from those in the UBL. For example, the PMC allows twenty days to appeal an order rather than the ten days provided by the UBL. Id. at 11 (§ 111.1). Also, the PMC provides, "This ordinance does not supersede Federal or State laws, statutes or regulations, except as allowed." Id. at 26.

[7] In February 2016, the City Council enacted an ordinance that established an inspection program. Appealed Order at 5 (# 22). In August 2016, the City began inspecting Pleasant Ridge rental properties for PMC violations and issuing citations. The citations imposed a separate fine for each violation, the fines were imposed as of the date the violation was discovered, and the fines began accumulating daily. Id. at 9 (# 42). In addition, the citations did not provide any grace period to allow property owners to make repairs during which fines would not be imposed. Id. The citations cite both the UBL and the PMC and are confusing as to which provisions the City was intending to operate under. Id. at 20 (# 91-92). The citations explain that an appeal of the order and fine may be made to the "hearing authority," which is the term used in the UBL. Id. (# 91); Ex. Vol. 8 at 187, 192. The citations indicate that the appeal period is ten days, which is from the UBL, rather than twenty days as provided in the PMC. Appealed Order at 20 (# 91) (citing Ind. Code § 36-7-9-7(a) and PMC § 111.1); Ex. Vol. 8 at 187, 192. During the inspection process, the City sought a search warrant to conduct an interior inspection, which was issued pursuant to the UBL. Appealed Order at 20 (# 91) (citing Ind. Code § 36-7-9-16 ).

[8] In January 2017, the Association filed an eleven-count complaint against the City, which was subsequently amended to add the remaining appellees. In February 2017, the Homeowners moved for a preliminary injunction, asking the trial court to enjoin the City from continuing its practice of "imposing ruinous fines that can be waived only by selling to the developer or tearing down one's own home" to force Pleasant Ridge property owners to sell to the developer so that the developer can demolish every home and build a new subdivision. Appellants' App. Vol. 2 at 127-28. The motion for preliminary injunction was based on four of the eleven counts in the complaint; namely, that the City's manner of enforcing the PMC violated (1) the UBL, (2) the PMC itself, (3) the Equal Protection Clause, and (4) the Privileges and Immunities Clause. Id. at 128.

[9] In September 2017, the trial court held an evidentiary hearing on the Homeowners' motion for preliminary injunction. In December 2017, the trial court issued the Appealed Order granting a preliminary injunction. As to the Homeowners' claim that the City's manner of enforcing the PMC violates the UBL, the trial court concluded that they are unlikely to prevail on that claim because the City is not required to follow the UBL. In relevant part, the trial court found that based on the plain language of the UBL and Indiana Code Chapter 36-1-3, also known as the Home Rule Act, the City was not required to exclusively follow the UBL. Appealed Order at 18-20 (# 83-92). The trial court also found that the citations are "confusing as to what provisions of the UBL and/or the PMC it is that the City intends to operate under, but the court cannot find that they are REQUIRED to do one or the other exclusively." Id. at 20 (# 92). The trial court declined the Homeowners' request to make specific findings regarding the City's violations of the UBL, although it found that the City "made no effort to argue that it ha[d] complied with the procedural requirements" of the UBL, and that "if the UBL were mandatory, the City is not in compliance." Id. at 18, 20 (# 82, 93).

[10] In contrast to its conclusion regarding the Homeowners' UBL claim, the trial court concluded that the Homeowners are likely to prevail on their claims that the City's manner of enforcing the PMC violated the PMC, the Equal Protection Clause, and the Privileges and Immunities Clause. The trial court concluded that because the Homeowners are likely to succeed on the merits of a claim that the government is violating the law, a preliminary injunction should issue under Indiana's per se rule. The City now brings this interlocutory appeal. The Homeowners cross-appeal the trial court's finding that the City is not required to follow the UBL and the conclusion that they are unlikely to succeed on their UBL claim.

Discussion and Decision

[11] This is an appeal from the grant of a preliminary injunction. We observe that the trial court is required to issue special findings of fact and conclusions thereon when determining whether to grant a preliminary injunction. Thornton-Tomasetti Eng'rs v. Indianapolis-Marion Cty. Pub. Library , 851 N.E.2d 1269, 1277 (Ind. Ct. App. 2006) ; Ind. Trial Rule 52(A). We review the special findings and conclusions for clear error. Ind. Trial Rule 52(A). "Findings of fact are clearly erroneous when the record lacks evidence or reasonable inferences from the evidence to support them. A judgment is clearly erroneous when a review of the record leaves us with a firm conviction that a mistake has been made." Coates v. Heat Wagons, Inc. , 942 N.E.2d 905, 912 (Ind. Ct. App. 2011). "We neither reweigh the evidence nor reassess witness credibility, but consider only the evidence favorable to the judgment and all reasonable inferences to be drawn therefrom." Clark's Sales & Serv., Inc. v. Smith , 4 N.E.3d 772, 780 (Ind. Ct. App. 2014). We review questions of law de novo. Planned Parenthood of Indiana v. Carter , 854 N.E.2d 853, 863 (Ind. Ct. App. 2006), trans. denied .

[12] To obtain a preliminary injunction, the moving party typically must show by a preponderance of the evidence that

(1) the movant's remedies at law are inadequate, thus causing irreparable harm pending resolution of the substantive action; (2) the movant has at least a reasonable likelihood of success at trial by establishing a prima facie case; (3) threatened injury to the movant outweighs the potential harm to the nonmoving party resulting from the granting of an injunction; and (4) the public interest would not be disserved.

Apple Glen Crossing, LLC v. Trademark Retail, Inc. , 784 N.E.2d 484, 487 (Ind. 2003). The power to issue a preliminary injunction should be used sparingly, with such relief granted only in rare instances in which the law and facts are clearly within the movant's favor. Clark's , 4 N.E.3d at 780.

[13] Although the trial court granted the preliminary injunction based on its conclusion that the Homeowners are likely to succeed on three of their claims, the Homeowners argue that the trial court clearly erred in concluding that they are unlikely to succeed on their claim that the City's manner of enforcing the PMC violates the UBL. Specifically, they assert that contrary to the trial court's finding, the plain language of the UBL and Home Rule Act establishes that the City is required to follow the UBL. We agree.

[14] Resolution of this issue involves statutory interpretation, and such issues "present questions of law, which we review de novo." Matter of Supervised Estate of Kent , 99 N.E.3d 634, 637 (Ind. 2018). "Our primary goal in reviewing statutes is to determine and follow the legislature's intent. The best indicator of legislative intent is the statutory language, and where the statute is clear and unambiguous, we apply it as drafted without resort to the nuanced principles of statutory interpretation." Id. at 638 (citations and quotation marks omitted). "We give undefined terms their plain and ordinary meaning, and we may consult English language dictionaries when they are helpful in determining that meaning." Id. However, where a word is defined, we are bound by that definition. Id.

[15] We begin by examining the UBL. Section 36-7-9-1 provides, "This chapter applies to each consolidated city and its county. This chapter also applies to any other municipality or county that adopts an ordinance under section 3 of this chapter." Section 36-7-9-3 provides, "The legislative body of a municipality or county may adopt this chapter by ordinance." By its plain terms, the UBL applies to consolidated cities, but it applies to other municipalities only if they voluntarily adopt it. Here, the parties agree that the City was not required to adopt the UBL. However, the trial court found, and the City agrees, that in 2001, the City passed an ordinance adopting the UBL pursuant to Section 36-7- 9-3. Having adopted the UBL, the City is now bound by its provisions. Ind. Code § 36-7-9-1.

[16] Generally, the provisions of the UBL apply to "unsafe buildings" and "unsafe premises." These terms are defined as follows:

(a) For purposes of this chapter, a building or structure, or any part of a building or structure, that is:
(1) in an impaired structural condition that makes it unsafe to a person or property;
(2) a fire hazard;
(3) a hazard to the public health;
(4) a public nuisance;
(5) dangerous to a person or property because of a violation of a statute or ordinance concerning building condition or maintenance ; or
(6) vacant or blighted and not maintained in a manner that would allow human habitation, occupancy, or use under the requirements of a statute or an ordinance;
is considered an unsafe building.
(b) For purposes of this chapter:
(1) an unsafe building; and
(2) the tract of real property on which the unsafe building is located;
are considered unsafe premises.

Ind. Code § 36-7-9-4 (emphasis added). Significant to this case is that an unsafe building is one that is "dangerous to a person or property because of a violation of [an] ordinance concerning building condition or maintenance." Id. The UBL itself does not contain any specific building safety standards, but it clearly anticipates that municipalities have or will adopt ordinances with such safety standards.

[17] The UBL provides local governments with procedures to enforce compliance with local building ordinances. Section 36-7-9-5(a) provides,

The enforcement authority may issue an order requiring action relative to any unsafe premises , including ... repair or rehabilitation of an unsafe building to bring it into compliance with standards for building condition or maintenance required for human habitation, occupancy, or use by a statute, a rule adopted under IC 4-22-2, or an ordinance .

(Emphases added.) By its plain terms, Section 36-7-9-5(a) governs orders that apply to "unsafe premises," which is a term specifically defined in Section 36-7-9-4. Therefore, the orders governed by Section 36-7-9-5(a) apply to buildings that are dangerous to a person or property because of a violation of an ordinance concerning building condition or maintenance. Ind. Code § 36-7-9-4. We note that because Section 36-7-9-5 provides that the "enforcement authority may issue an order," the enforcement authority is not required to issue an order. Although part of Section 36-7-9-5(a) is permissive, it also contains mandatory provisions: "Notice of the order must be given under section 25 of this chapter. The ordered action must be reasonably related to the condition of the unsafe premises and the nature and use of nearby properties." (Emphases added.) Accordingly, by their plain terms, these provisions of the UBL apply whenever the enforcement authority does choose to issue an order relative to any buildings that are dangerous to a person or property because of a violation of an ordinance concerning building condition or maintenance. Local governments that have adopted the UBL are required to comply with these and other such mandatory provisions. As previously mentioned, the UBL provides procedural protections for property owners who receive an order to repair or rehabilitate an unsafe building, such as requirements as to the information to be included in an order, a "sufficient time" of ten to sixty days to make repairs before a fine may be imposed, a ten-day period to appeal the order, and limits on the civil penalty for noncompliance with an order to $2500 and on the accrual of such a civil penalty to not more than $1000 every ninety days. Ind. Code §§ 36-7-9-5(b) - (c), -7(a), -7.5(b)-(c).

[18] In 2008, the City adopted the PMC, which sets forth specific building and property standards to insure public health, safety and welfare. Pursuant to the UBL's plain terms, a violation of the PMC safety standards that renders a building dangerous to a person or property is an unsafe building to which the UBL applies. Ind. Code § 36-7-9-4(a)(5). As discussed, the UBL does not provide specific building safety standards, so in this respect, the PMC is complementary to the UBL. However, the PMC contains its own enforcement provisions, such as those which govern notice of violations, the imposition of penalties, and the appeals process, which overlap with but differ from the UBL enforcement provisions. Ex. Vol. 4 at 8-9, 11. The City argues that pursuant to the Home Rule Act, it is not required to follow the enforcement provisions of the UBL but rather is empowered to choose whether to operate under the UBL or the PMC. We disagree.

[19] It is true, as the City asserts, that the Home Rule Act implements the "policy of the state ... to grant units all the powers that they need for the effective operation of government as to local affairs." Ind. Code § 36-1-3-2. And the Home Rule Act provides that "a unit has: all powers granted it by statute; and all other powers necessary or desirable in the conduct of its affairs, even though not granted by statute." Ind. Code § 36-1-3-4(b). However, the Home Rule Act also provides that "[i]f there is a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise the power must do so in that manner." Ind. Code. § 36-1-3-6. Given that the City has adopted the UBL, the Home Rule Act, by its plain terms, requires the City to obey the UBL. Moreover, the PMC explicitly provides, "This ordinance does not supersede Federal or State laws, statutes or regulations, except as allowed." Ex. Vol. 4 at 26.

[20] Based on the foregoing, we conclude that the City is required to comply with the UBL and that the City must enforce the PMC within the confines and strictures of the UBL. Accordingly, the trial court clearly erred in finding that the City is not required to follow the UBL. Because the trial court found that the UBL was not mandatory, the trial court did not address how the UBL impacts the City's enforcement of the PMC. Some of the provisions in the UBL are permissive, others are mandatory. Some provisions of the PMC may conflict with the UBL, some provisions will be compatible with the UBL, and many provisions will address subject matter not covered by the UBL. Therefore, we remand for the trial court to consider how the UBL and the PMC work together in light of our conclusion that the City is bound to enforce the PMC in accordance with the UBL, and to reconsider the Homeowners' claim that the City's manner of enforcing the PMC violates the UBL. Further, because the trial court based its conclusions regarding the Homeowners' remaining claims on the erroneous premise that the City is not required to follow the UBL, those claims, if the Homeowners choose to pursue them, will need to be reexamined. As such, we need not address the issues raised by the City. We reverse the Appealed Order and the order granting the preliminary injunction and remand for further proceedings consistent with this opinion.

[21] Reversed and remanded.

Bailey, J., and Brown, J., concur.

      Because the trial court's findings of fact and conclusions thereon set forth the terms of the preliminary injunction, thereby duplicating the trial court's separate order granting the preliminary injunction, for simplicity's sake, we generally refer to the trial court's findings of fact and conclusions thereon as the Appealed Order.

      In its appellants' brief, the City states that it contests many of the facts found in the Appealed Order, but they do not challenge the facts presented here. Appellants' Br. at 10 n.1. We observe that the City includes evidence in its statement of facts that is not incorporated in the trial court's findings of fact. Because our standard of review requires us to consider only the evidence most favorable to the judgment, we ignore the evidence that is irrelevant to or that does not support the trial court's findings.

      In its appellants' brief, the City refers to the City Council as the Common Council, but we use the term used by the trial court for consistency.

      The City's ordinance adopting the UBL is not in the record, but the City acknowledges that it adopted the UBL in 2001. Appellants' Reply Br. at 49.

      Although the parties cite the exhibit volumes as part of the transcript, e.g., Tr. Vol. IV, the exhibit volumes are titled "Exhibits," and therefore we cite to the exhibit volumes separately from the transcript volumes.

      The per se rule provides that where a government entity clearly violates a law, the public interest is so great that an injunction should issue without requiring the moving party to establish irreparable harm or greater injury. Indiana Family & Soc. Servs. Admin. v. Walgreen Co. , 769 N.E.2d 158, 161-62 (Ind. 2002).

      The unspoken premise here is that the City is not a consolidated city.

      Also, the UBL addresses vacant structures and provides as follows:
      In recognition of the problems created in a community by vacant structures, the general assembly finds that vigorous and disciplined action should be taken to ensure the proper maintenance and repair of vacant structures and encourages local governmental bodies to adopt maintenance and repair standards appropriate for the community in accordance with this chapter and other statutes.
      Ind. Code § 36-7-9-4.5(k). We note that when the City cites this provision in its argument, it ignores the fact that it applies to vacant structures.

      The "enforcement authority" is the chief administrative officer of the department authorized to administer the UBL. Ind. Code § 36-7-9-2.

      The City argues that the PMC has legal force independent of the UBL because nothing in the UBL " 'expressly denies' local units the power to choose their own safety regulations and means of enforcement for those requirements." Appellants' Reply Br. at 48. It is true that the UBL does not contain specific safety regulations. As discussed, the UBL anticipates that municipalities have or will adopt specific safety regulations. In addition, the UBL does not prohibit local units from choosing their own means of enforcement. However, the City chose to adopt the UBL, and therefore it is bound by the enforcement provisions of the UBL.


source: Caselaw Access Project

author: May, Judge.

license: Public Domain

text:
    In the MATTER OF the Termination of the Parent-Child Relationship of C.M.S.T., T.M., & M.M. (Children) and A.S. (Mother) and R.T. (Father)
    A.S. (Mother) and R.T. (Father), Appellants-Respondents, v. The Indiana Department of Child Services, Appellee-Petitioners
    Court of Appeals Case No. 18A-JT-530
    Court of Appeals of Indiana.
    Filed September 11, 2018
    Attorney for Appellant A.S., (Mother): Cara Schaefer Wieneke, Wieneke Law Office, Brooklyn, Indiana
    Attorneys for Appellant R.T., (Father): Steven E. Ripstra, Jacob P. Wahl, Ripstra Law Office, Jasper, Indiana
    Attorneys for Appellee, Curtis T. Hill, Jr., Attorney General of Indiana, Robert J. Henke, Deputy Attorney General, Indianapolis, Indiana
   May, Judge.

[1] A.S. ("Mother") appeals the involuntary termination of her parental rights to C.M.S.T., born May 11, 2011; T.M., born November 12, 2013; and M.M., born May 24, 2016 (collectively, "Children"). R.T. ("Father") appeals the involuntary termination of his parental rights to C.M.S.T. Mother and Father (collectively, "Parents") present a number of issues, one of which we find dispositive: whether Parents were denied due process during the proceedings. The Department of Child Services ("DCS") concedes Parents were denied due process. Accordingly, we reverse and remand.

Facts and Procedural History

[2] In March 2015, DCS responded to a report that Mother and her then-husband were involved in a domestic violence-related altercation. C.M.S.T. was staying with Father at the time. T.M. was removed from Mother's care based on the domestic violence and Mother's use of methamphetamine. Father was required to bring C.M.S.T. to the DCS office for placement outside Mother's home as well. Father testified C.M.S.T. was not placed with him at that time because of his prior criminal history. T.M. and C.M.S.T. were placed with their grandmother, Te.C., though at some point they were removed from her care and placed in foster care.

[3] On March 21, 2015, DCS filed a petition alleging T.M. and C.M.S.T. were Children in Need of Services ("CHINS"). On April 16, 2015, T.M. and C.M.S.T. were adjudicated CHINS. In May 2015, C.M.S.T. was placed with Father on a trial basis. She was removed from Father's care shortly thereafter because Father had a medical emergency resulting from a mixture of alcohol and anti-anxiety medication. On June 8, 2015, the trial court entered its dispositional order in this case, ordering Mother and Father to engage in services.

[4] Jesse Hubert was the first Family Case Manager ("FCM") assigned to the case. At some point, he was replaced by FCM Marilyn Neal, who submitted a report in the case on October 14, 2015. Father testified FCM Neal filed a false report that Father "went to [C.M.S.T.'s]

school, made a scene, and tried to take [C.M.S.T.]." (Tr. Vol. III at 141.) Based on FCM Neal's false report, Father was required to participate in supervised visits with C.M.S.T. and was banned from the school. DCS terminated FCM Neal, who was replaced by FCM Sybil Rodeck. FCM Rodeck was on the case for only a short period of time before she was replaced with FCM Megan Ginanni, who was also working with Father on a CHINS case for one of his other children.

[5] At some point during her time working on the case, FCM Ginanni and Father began exchanging Facebook messages, which became sexually explicit in nature. FCM Ginanni and Father also engaged in a sexual relationship. Father testified FCM Ginanni would give him advanced notice of drug screens and told him he did not need to continue engaging in certain services. Father testified FCM Ginanni told him he "would get reunified [with C.M.S.T.] and she would live with me and she was gonna (sic) help me get [Father's other child] as well." (Id. at 149) (footnote added).

[6] In January 2016, C.M.S.T. was placed with Father for a trial home visit. In March 2016, FCM Ginanni gave Father a drug screen he failed. Father testified FCM Ginanni told him "she'd take care of it." (Id. at 150.) Father submitted another drug test the next day and failed it, resulting in C.M.S.T.'s removal from his care. Father was arrested after his positive drug screen because drug use also violated the terms of his probation. Father testified he "got angry and decided to come clean about everything" with FCM Ginanni to FCM Ginanni's supervisor. DCS fired FCM Ginanni based on her inappropriate relationship with Father.

[7] During these transitions, Mother was compliant with services. Mother testified she stopped using methamphetamine on July 15, 2015. She learned she was pregnant with M.M. in October 2015. In March 2016, FCM Maureen Lambeck took over the case. Prior to M.M.'s birth in May 2016, Mother requested a trial home visit with C.M.S.T. and T.M. to prepare for the birth of their sibling. FCM Lambeck denied her request, though she allowed C.M.S.T. and T.M. to participate in overnight visits with Mother on the weekend. Then, in July or August 2016, FCM Lambeck placed C.M.S.T. and T.M. in Mother's care for a trial home visit.

[8] In early September 2016, Mother left Children with her father, her older son, and her older son's girlfriend, so that Mother could use methamphetamine at a different location. Mother testified she reported her use to FCM Lambeck shortly thereafter. FCM Lambeck removed Children from Mother's care and placed them in two separate placements - C.M.S.T. with kinship placement, and T.M. and M.M. in foster placement.

[9] Mother testified she contacted a DCS attorney in December 2016 and asked the attorney to help Mother find an inpatient substance abuse treatment center. Mother was placed at Serenity House and engaged in residential treatment until February 2017, when Serenity House's administrator had a medical emergency out of town and was unable to manage the facility. Mother immediately contacted FCM Lambeck, who provided Mother with a list of inpatient treatment facilities, but FCM Lambeck testified it was Mother's "responsibility to get into those places." (Id. at 77.) Mother moved in with her father and lost her job due to lack of transportation.

[10] In June 2017, DCS filed petitions to terminate Mother's and Father's parental rights to their respective children. In July 2017, while with the father of M.M. and T.M., Mother was arrested for possession of paraphernalia and tested positive for methamphetamine. The arrest violated Mother's probation on another charge, so she was taken into custody. At the time of the termination hearing, Mother was housed at the Spencer County Jail, but she allegedly was scheduled to be released shortly after the hearing. Father was also housed at the Spencer County Jail at the time of the termination proceedings, and he testified he was scheduled for release on September 26, 2018.

[11] In August 2017, Te.C. and Ta.C., Children's respective paternal grandmothers, filed a motion to intervene, seeking to have Children placed with either paternal grandmother. Those requests were denied. On August 15 and September 12, 2017, the trial court held evidentiary hearings regarding the termination petitions. On January 8, 2018, the trial court issued orders terminating Mother's and Father's parental rights to their respective children.

[12] Mother and Father both timely appealed the termination decisions. On June 26, 2018, DCS filed a motion for remand or, in the alternative, a new briefing schedule. On July 5, 2018, this court granted DCS's motion for a new briefing schedule and held in abeyance the issue of remand to be determined by the writing panel.

Discussion and Decision

[13] We review termination of parental rights with great deference. In re K.S., D.S., & B.G. , 750 N.E.2d 832, 836 (Ind. Ct. App. 2001). We will not reweigh evidence or judge credibility of witnesses. In re D.D. , 804 N.E.2d 258, 265 (Ind. Ct. App. 2004), trans. denied . Instead, we consider only the evidence and reasonable inferences most favorable to the judgment. Id. In deference to the juvenile court's unique position to assess the evidence, we will set aside a judgment terminating a parent's rights only if it is clearly erroneous. In re L.S. , 717 N.E.2d 204, 208 (Ind. Ct. App. 1999), reh'g denied , trans. denied , cert. denied 534 U.S. 1161, 122 S.Ct. 1197, 152 L.Ed.2d 136 (2002).

[14] "The traditional right of parents to establish a home and raise their children is protected by the Fourteenth Amendment of the United States Constitution." In re M.B. , 666 N.E.2d 73, 76 (Ind. Ct. App. 1996), trans. denied . A trial court must subordinate the interests of the parents to those of the children, however, when evaluating the circumstances surrounding a termination. In re K.S. , 750 N.E.2d at 837. The right to raise one's own children should not be terminated solely because there is a better home available for the children, id. , but parental rights may be terminated when a parent is unable or unwilling to meet parental responsibilities. Id. at 836.

[15] In a termination of parental rights proceeding, parents have certain due process rights:

When a State seeks to terminate the parent-child relationship, it must do so in a manner that meets the requirements of the due process clause. Santosky v. Kramer , 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Although due process has never been precisely defined, the phrase embodies a requirement of "fundamental fairness." E.P. v. Marion County Office of Family & Children , 653 N.E.2d 1026, 1031 (Ind. Ct. App. 1995) (quoting Lassiter v. Dep't of Social Servs. , 452 U.S. 18, 26, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) ). Citing Mathews v. Eldridge , 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), this court has recently acknowledged that the nature of the process due in parental rights termination proceedings turns on a balancing of three factors: (1) the private interests affected by the proceeding, (2) the risk of error created by the State's chosen procedure, and (3) the countervailing governmental interest supporting use of the challenged procedure. A.P. v. Porter County Office of Family and Children , 734 N.E.2d 1107 (Ind. Ct. App. 2000) [, reh'g denied ].

J.T. v. Marion Cty. Office of Family & Children , 740 N.E.2d 1261, 1264 (Ind. Ct. App. 2000), reh'g denied, trans. denied, abrogated on other grounds by Baker v. Marion Cty. Office of Family & Children , 810 N.E.2d 1035, 1041 (Ind. 2004) (abrogated regarding sufficiency of counsel). In addition, "procedural irregularities in a CHINS proceedings [sic] may be of such import that they deprive a parent of procedural due process with respect to the termination of his or her parental rights." A.P. , 734 N.E.2d at 1112-13.

[16] Here, the trial court found, regarding the procedural difficulties in the underlying CHINS cases:

This case involved 5 FCMs and 4 attorneys for the DCS. Two FCMs were fired during the pendency of this case based on their behavior during this case. The parents have argued that this caused them to fail. One could speculate what might have happened had this case been handled properly by one FCM. That speculation could be that that Mother's trial home visit would have occurred earlier than July 2016 and would have been successful with the Chins [sic] case being dismissed. However, the Court should not and cannot make such a speculation, nor should the Court allow those facts to influence its decision. The Court argues [sic] that the chaotic way this case was handled by DCS, especially the actions of the two FCMs who were fired, contributed to this case not progressing the way it could have. However, that is not the deciding factor.

(Mother's App. Vol. II at 118.) We cannot agree that the egregious behavior of some of the DCS employees did not contribute to Mother's and Father's non-compliance with some services.

[17] Father's testimony that FCM Ginanni told him to discontinue services and seemingly accelerated the visitation and home placement schedule for C.M.S.T., while denying similar escalation of visitation to Mother is just one of many instances that lead us to believe the chaotic and unprofessional handling of this case violated Mother's and Father's due process rights. The State concedes this violation of due process.

Conclusion

[18] In light of the unusual and alarming circumstances that occurred in the underlying CHINS cases, we reverse the termination of Mother's and Father's parental rights to their respective children. We remand to the trial court for reinstatement of the CHINS cases, a re-examination of the requirements for reunification, and a revised dispositional order outlining the services Mother and Father must complete to reunify with their respective children.

[19] Reversed and remanded.

Baker, J., and Robb, J., concur.

EXHIBIT A

IN THE

COURT OF APPEALS OF INDIANA

Termination: A.A., Appellant,

v.

Indiana Department of Child Services, Appellee.

Court of Appeals Case No. 18A-JT-527

Order

[1] Appellant's Brief and Appendix were filed on May 4, 2018. On May 31, 2018, the Court ordered Appellee Indiana Department of Child Services ("DCS") to file its brief by June 18, 2018. Instead of filing a brief, DCS, by counsel, has filed a Verified Motion to Remand, or in the Alternative, a New Briefing Schedule. In the motion, DCS essentially concedes that Appellant was not provided with adequate notice of the termination of parental rights hearing and that the trial court violated Appellant's due process rights when it defaulted her while she was present in the court's waiting room but excluded from the actual courtroom. DCS asks that the case be dismissed without prejudice and remanded to the trial court for further proceedings consistent with due process. DCS alleges that Appellant does not object to remand.

[2] Over the past six (6) months, DCS has filed eight (8) motions to remand that are substantively similar to the motion at issue here. See Termination: S.T. v. Indiana Dep't of Child Services , No. 48A02-1709-JT-2094; Termination: T.Z. v. Indiana Dep't of Child Services , No. 79A02-1710-JT-2406; Termination: K.P. v. Indiana Dep't of Child Services , No. 53A05-1712-JT-2830; Termination: N.L. v. Indiana Dep't of Child Services , No. 18A-JT-94; Termination: A.B. v. Indiana Dep't of Child Services , No. 18A-JT-170; Termination: C.S., et al. v. Indiana Dep't of Child Services , No. 18A-JT-280; Termination: J.F., et al. v. Indiana Dep't of Child Services , No. 18A-JT-341; Termination: L.R. v. Indiana Dep't of Child Services , No. 18A-JT-529. This is the ninth such motion filed by DCS, and the Court is aware of a tenth motion that has been filed in Cause Number 18A-JT-530. The motions are always filed after Appellant has filed their brief. In these motions, DCS essentially concedes that Appellant has either not been provided with adequate notice or that their due process rights have been violated. DCS then, as in this case, requests that the matter be remanded to the trial court for further proceedings consistent with due process.

[3] It is not clear why DCS has suddenly chosen to file motions to remand in these cases rather than file a brief. The result of this, though, is that the Court has primarily dealt with these issues through its orders and not in a formal opinion. While the orders of this Court carry weight, they do not carry the weight or the effect that an opinion from this Court does. By filing a motion to remand, DCS has successfully avoided defending repeated, significant violations of due process in termination of parental rights cases.

[4] The increasing frequency of these motions suggest that there are repeated, significant violations of due process occurring in termination of parental rights cases throughout this state. This is a disturbing trend given the fundamental rights at issue in these types of cases. See In re Adoption of O.R. , 16 N.E.3d 965, 972 (Ind. 2014) (noting that the Fourteenth Amendment to the United States Constitution protects the rights of parents to establish a home and raise their children, that parents have a fundamental liberty interest in the care, custody, and control of their children, and that the parent-child relationship is one of the most valued relationships in our culture).

[5] While the Court commends DCS for essentially conceding error in these cases, the Court is obligated to formally admonish DCS for its failure to afford litigants throughout this state the due process rights they are owed. Furthermore, the Court also reminds the trial courts throughout this state of their duty to ensure that litigants' due process rights are not violated. Given the fundamental due process rights at issue in termination of parental rights cases, affording litigants these fundamental due process rights is essential, including not only the litigants but also their children.

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

1. Pursuant to Appellate Rule 37, Appellee's Verified Motion to Remand is granted. This appeal is dismissed without prejudice and remanded to the trial court for further proceedings consistent with due process.
2. Appellant may, after filing a new notice of appeal, raise the issues Appellant would have raised in this appeal along with any new issues created by the trial court's ruling(s) on remand.
3. The Court directs that this order should be published. The Clerk of this Court is directed to send copies of this order to West/Thomson Reuters, LexisNexis, and all other sources to which decisions/opinions of this Court are normally sent.
4. The Clerk of this Court is directed to send a copy of this order to the parties, Judge Brent J. Niemeier of the Vanderburgh Superior Court, Magistrate Renee A. Ferguson of the Vanderburgh Superior Court, the Vanderburgh Circuit and Superior Courts Clerk, Indiana Attorney General Curtis Hill, and Terry J. Stigdon, Director of the Indiana Department of Child Services.
5. The Vanderburgh Circuit and Superior Courts Clerk is directed to file a copy of this order under Cause Numbers 82D04-1711-JT-2195, 82D04-1711-JT-2196, 82D04-1711-JT-2197, and 82D04-1711-JT-2198, and, pursuant to Indiana Trial Rule 77(D), the Clerk shall place the contents of this order in the Record of Judgments and Orders.

Ordered 7/9/2018

Mathias, J., Darden, Friedlander, Sr.JJ., concur.

For the Court, /s/ Nancy Harris Vaidik

Chief Judge

      The parental rights of the father of T.M. and M.M. were also terminated, but he does not participate in this appeal.

      We note some of the facts and timeline are difficult to discern because the record provided to us does not contain much information from the proceedings in the Child in Need of Services ("CHINS") cases. This lack of documentation has severely hindered our ability to review this matter.

      Te.C. is C.M.S.T.'s paternal grandmother, but DCS initially placed both C.M.S.T. and T.M. with her.

      This report is not in the record but was referenced at the termination hearing.

      It is unclear to whom the pronoun "she" refers, as C.M.S.T. is also female. In her brief, Mother identifies "she" as FCM Ginanni, though it is also possible "she" referred to C.M.S.T.

      FCM Lambeck testified DCS could refer parents to outpatient, but not inpatient, counseling. Additionally, FCM Lambeck testified DCS could not help parents find places to live, except to give Mother a list of available places to stay or rent.

      It is unclear why the trial court denied Te.C.'s and Ta.C.'s requests to intervene.

      We note this case was referenced in a July 9, 2018, order granting a DCS motion to remand, which is attached as Exhibit A to this opinion. In the order, our Court formally admonished DCS "for its failure to afford litigants through this state the due process they are owed." (Ex. A at 2.) Further, our Court reminded trial courts "of their duty to ensure that litigants' due process rights are not violated. Given the fundamental due process rights at issue in termination of parental rights cases, affording litigants these fundamental due process rights is essential, including not only the litigants but also their children." (Id. ) We join in those sentiments, especially considering the multiple due process and ethical violations present in this case.

      We deny DCS's motion for remand in an order issued contemporaneously with this opinion.

      The orders regarding each child have almost identical language. We cite to the trial court's order terminating Mother's and Father's parental rights to C.M.S.T.