author: Riley, Judge.

text:
    NIPSCO INDUSTRIAL GROUP, Appellant-Intervenor, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY and Office of the Utility Consumer Counselor, Appellees-Petitioner.
    Court of Appeals Case No. 93A02-1711-EX-2735
    Court of Appeals of Indiana.
    FILED May 31, 2018
    Attorneys for Appellant: Todd A. Richardson, Bette J. Dodd, Joseph P. Rompala, Lewis & Kappes, PC, Indianapolis, Indiana
    Attorneys for Appellees: Brian J. Paul, Daniel E. Pulliam, Faegre Baker Daniels LLP, Indianapolis, Indiana, Claudia J. Earls, M. Bryan Little, Nisource Corporate Services, Indianapolis, Indiana, William I. Fine, Randall C. Helmen, Tiffany T. Murray, Office of Utility Consumer, Counselor, Indianapolis, Indiana
   Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Intervenor, NIPSCO Industrial Group, appeals the Order of the Indiana Regulatory Commission (Commission) in which the Commission authorized Appellee-Petitioner, Northern Indiana Public Service Company (NIPSCO), to impose a statutory regulated rate adjustment based on total load on its utility customers.

[2] We reverse.

ISSUE

[3] NIPSCO Industrial Group presents us with two issues on appeal, one of which we find dispositive and which we restate as: Whether the Commission failed to comply with Indiana Code section 8-1-39-9(a)(1), which requires the allocation of a rate adjustment to be based on firm load, by approving NIPSCO's computation which utilized an allocation based on total load.

FACTS AND PROCEDURAL HISTORY

[4] NIPSCO is a public electric and gas utility that services over 461,000 residential, commercial, industrial, wholesale, and other customers in Indiana. The NIPSCO Industrial Group represents a group of five of NIPSCO's largest industrial customers.

[5] As with other utilities, NIPSCO recovers its costs for providing electric service through rates approved by the Commission. Traditionally, a utility's rates charged to customers are adjusted through periodic rate cases, which are expensive, time consuming, and sometimes result in large, sudden rate hikes for customers. Another method to set rates is through 'tracker' proceedings, which allow incremental increases for specific projects and costs between general rate case proceedings. In 2013, the General Assembly enacted Indiana Code Chapter 8-1-39, which allows a utility to petition for a tracker for certain proposed new or replacement Transmission, Distribution, and Storage System Improvement Charge or TDSIC (TDSIC Statute). Thus, in contrast to traditional regulation in which utility rates are determined through general rate cases based on comprehensive review of the utility's finances and operations, the TDSIC permits incremental rate adjustments at six-month intervals to reflect specific costs associated with defined infrastructure projects. Pursuant to section 10 of the TDSIC Statute, an energy utility must first secure regulatory approval for a 7-year plan designating an eligible project that the utility proposes to construct. See Ind. Code § 8-1-39-10. Once a 7-year plan is approved, the utility may then file petitions every six months under Section 9, seeking rate adjustments that reflect costs as they are incurred on approved projects. See I.C.§ 8-1-39-9. Specifically, section 9 mandates that a periodic adjustment of the basic rate must, among others, "use the customer class revenue allocation factor based on firm load approved in the utility's most recent retail base rate case order[.]" I.C. § 8-1-39-9(a)(1).

[6] The statutory phrase "based on firm load" refers to a distinction between utility services rendered on a firm as opposed to an interruptible basis. See I.C. § 8-1-39-9(a)(1). For customers electing firm service, the utility is required to provide service with a high degree of reliability, whereas interruptible service is subject to interruption as needed to meet the needs of customers, and is thus less reliable. Because the utility does not have to build capacity and maintain resources to meet interruptible demand, the service promotes efficiency and reduces the level of needed investment, to the benefit of the interruptible load ratepayers. Accordingly, NIPSCO serves distinct customer classes under different rate schedules that reflect the service each class elects. NIPSCO's tariff includes seventeen different rate classes and large volume customers, like the NIPSCO Industrial Group, who receive firm services under three different industrial rate schedules. Within the limits defined in the three industrial rate schedules, the customers may designate a portion of their load as interruptible, with the rest of their demand falling within the firm load service.

[7] The aggregate TDSIC costs recoverable in a given six-month period are used to compute revenue requirements, which is the amount of additional dollars that NIPSCO seeks to collect from its customers collectively. Those revenue requirements are then divided among the different customer classes based on allocation factors derived from the most recent general rate case. See I.C. § 8-1-39-9(a)(1). Once the dollar amount to be recovered from each customer class is determined, specific rate factors are computed by dividing the revenue total for the given class by the total projected class consumption for the upcoming six-month period.

[8] In July 2016, the parties entered into the TDSIC Settlement, in which NIPSCO sought the Commission's approval of its 7-year electric plan. Among others, the parties stipulated in the TDSIC Settlement to a defined structure for TDSIC proceedings, including compromises on the implementation of allocation factors. The TDSIC Settlement noted that "[t]o the extent that terms of this Settlement refer to issues currently pending in Cause No. 44688, the terms approved by the Commission in Cause No. 44688 shall apply to the TDSIC [ ] proceedings filed in accordance with the 7-Year Electric Plan." (Appellant's App. Vol. III, p. 62). Joint Exhibit D to Cause No. 44688 recognized "class allocation factor percentages [that] shall be applied to the respective distribution-or transmission-related revenue requirement and then the resulting TDSIC charge factor (per kWh) applied to each customer's firm (or non-interruptible) load within that class." (Appellant's App. Vol. II, p. 246).

[9] Six days later, the Commission approved the Settlement Agreement which further specified the allocation factors referenced in the TDSIC Settlement. In approving the Settlement Agreement, the Commission found:

For purposes of establishing any rate schedules allowing for the recovery of 80% of NIPSCO's approved capital TDSIC expenditures and costs pursuant to Indiana Code § 8-1-39-9(a), the Settling Parties agree that Joint Exhibit D to the Settlement Agreement reflects, pursuant to Indiana Code § 8-1-39-9(a), the customer class revenue allocation facts that should be applied to firm load.

(Appellant's App. Vol. II, p. 152). Likewise, Joint Exhibit D to the Settlement Agreement acknowledged

pursuant to Indiana Code § 8-1-39-9(a), the customer class revenue allocation factors that should be applied to firm load. The Settling Parties agree that allocation factors shown on Joint Exhibit D to the Settlement Agreement should be applied for the periodic recovery of any approved capital TDSIC expenditures and costs to properly account for difference between transmission and distribution customers.

(Appellant's App. Vol. II, p. 152). It is undisputed by the parties that the revenue allocation factors of Joint Exhibit D "are based on total load, including firm and non-firm load." (Non-Conf. Exh. Vol. II, p. 136).

[10] Subsequently to entering into both agreements, NIPSCO filed a first petition, seeking a rate adjustment in accordance with section 9 of the TDSIC Statute (TDSIC-1). In its petition, NIPSCO adopted a new method to determine the allocation and calculate the newly proposed rates. Specifically, NIPSCO: (1) allocated the revenue requirements using the Settlement Agreement's Joint Exhibit D factors based on total load (firm plus interruptible); (2) computed the rate adjustment by dividing the class revenue portion by the total projected load (firm plus interruptible); and (3) then applied the adjustment only to firm sales and not to interruptible sales. This calculation and application limited the rate increase for firm service to the same adjustment that would have been determined if interruptible load had been removed in the first step of the calculation. The parties did not object to this method of rate adjustment computation and the TDSIC-1 was approved by the Commission.

[11] NIPSCO filed its second petition for a rate increase (TDSIC-2) under the Settlement Agreement on June 30, 2017. In the TDSIC-2 proceeding before the Commission, NIPSCO proposed an allocation that reflected the distinct transmission and distribution facts, but did not separate out interruptible load. Instead, NIPSCO based its cost allocation (1) on total load, including both firm and interruptible load, and (2) computed the rate adjustment for the different classes based on firm load only, resulting in higher charges to customers in rate classes with substantial interruptible load. The Commission issued its final Order on October 31, 2017, approving NIPSCO's proposed allocation. Specifically, the Commission found:

Indiana Code [s]ection 8-1-39-9(a)(1) states that the [p]etition must use the customer class revenue allocation factor based on firm load approved in the public utility's most recent retail base rate case order. Specific to the evidence of this proceeding, the [p]arties explicitly agreed to and the Commission approved the allocation factors established in the Rate Case Settlement and the Settlement. Those agreements leave no question as to what factors should be applied and no allowance for subsequent migrations. Thus, we find that the allocation factors reflected in Joint Exhibit D to the Rate Case Settlement are to be used to calculate NIPSCO's TDSIC-2 customer class specific revenue requirement. Further, we find that the derivation of the customer class specific rate factors to collect the class allocated revenue should use the firm load within that class[.]

(Appellant's App. Vol. II, p. 15) (footnote omitted).

[12] The NIPSCO Industrial Group now appeals. Additional facts will be provided if necessary.

DISCUSSION AND DECISION

I. Standard of Review

[13] Judicial review of the Commission's decision is governed by Indiana Code section 8-1-3-1, which provides that

[a]ny person, firm, association, corporation, limited liability company, city, town or public utility adversely affected by any final decision, ruling, or order of the [C]ommission may, within thirty (30) days from the date of entry of such decision, ruling, or order, appeal to the court of appeals of Indiana for errors of law under the same terms and conditions as govern appeals in ordinary civil actions, except as otherwise provided in this chapter and with the right in the losing party or parties in the court of appeals to apply to the supreme court for a petition to transfer the cause to said supreme court as in other cases. An assignment of errors that the decision, ruling, or order of the [C]ommission is contrary to law shall be sufficient to present both the sufficiency of the facts found to sustain the decision, ruling, or order, and the sufficiency of the evidence to sustain the finding of facts upon which it was ordered.

[14] More specifically, our review is two-tiered:

On the first level, it requires a review of whether there is substantial evidence in light of the whole record to support the Commission's findings of basic fact. Such determinations of basic fact are reviewed under a substantial evidence standard, meaning the order will stand unless no substantial evidence supports it. In substantial evidence review, "the appellate court neither reweights the evidence nor assesses the credibility to the [Commission's] findings." The Commission's order is conclusive and binding unless (1) the evidence on which the Commission based its findings was devoid of probative value; (2) the quantum of legitimate evidence was so proportionately meager as to lead to the conviction that the finding does not rest upon a rational basis; (3) the result of the hearing before the Commission was substantially influenced by improper considerations; (4) there was no substantial evidence supporting the findings of the Commission; (5) the order of the Commission is fraudulent, unreasonable, or arbitrary. This list of exceptions is not exclusive.
At the second level, the order must contain specific findings on all the factual determinations material to its ultimate conclusions. McClain v. Review Bd. of Ind. Dep't of Workforce Dev. , 693 N.E.2d 1314, 1317-18 (Ind. 1998), described the judicial task on this score as reviewing conclusions of ultimate facts for reasonableness, the deference of which is based on the amount of expertise exercised by the agency. Insofar as the order involves a subject within the Commission's special competence, courts should give it greater deference. If the subject is outside the Commission's expertise, courts give it less deference. In either case[,] courts may examine the logic of inferences drawn and any rule of law that may drive the result. Additionally, an agency action is always subject to review as contrary to law, but this constitutionally preserved review is limited to whether the Commission stayed within its jurisdiction and conformed to the statutory standard and legal principles involved in producing its decision, ruling, or order.

Citizens Action Coalition of Ind., Inc. v. Indianapolis Power & Light Co. , 74 N.E.3d 554, 562-63 (Ind. Ct. App. 2017) (internal citations omitted) (quoting N. Ind. Pub. Serv. v. U.S. Steel , 907 N.E.2d 1012, 1016 (Ind. 2009) ). However, where the facts are undisputed and the issues involve the Commission's interpretation of the statutory language, we review such interpretation de novo. BP Products North America, Inc. v. Office of Utility Consumer Counselor , 947 N.E.2d 471, 476 (Ind. Ct. App. 2011), mod'd on reh'g on different grounds , 964 N.E.2d 234 (Ind. Ct. App. 2011).

[15] The Commission's "authority 'includes implicit powers necessary to effectuate the statutory regulatory scheme.' " United States Gypsum, Inc. v. Ind. Gas Co. , 735 N.E.2d 790, 795 (Ind. 2000) (quoting Office of Util. Consumer Counselor v. Pub. Serv. Co. , 608 N.E.2d 1362, 1363-64 (Ind. 1993) ). As a legislative creation, the Commission is limited to exercising "that power which has been conferred upon it by statute." Citizens Action Coal. Of Ind., Inc. , 74 N.E.3d at 562. With respect to matters within its jurisdiction, it is accepted that the Commission "enjoys wide discretion." Id. at 565. We will not override the Commission's findings and decision simply "because we might reach a contrary opinion on the same evidence." Id. The party challenging the Commission's decision bears the burden of showing there is insufficient evidence in the record to support the Commission's findings; it is not enough to "merely cite to other evidence of record which would support a determination more favorable to their position." Id. at 565-66.

[16] It is a well-established "basic legislative policy that questions of rate-making methodology are best consigned to the Commission's expertise." Id. at 562. In rate cases, "the Commission's primary objective is to establish a level of rates and charges that will permit the utility to meet its operating expenses plus a return on investment which will compensate its investors." Id. "In determining fair rates, the Commission considers a representative level of anticipated revenues and expenses and the property employed by the utility to provide services to its customers." United States Gypsum, Inc. , 735 N.E.2d at 798. When the Commission "determines that a utility's rates have become unjust and unreasonable, it may modify them by ordering just and reasonable rates to be charged prospectively." Id. Because the "rate-setting procedure is comprehensive[,] the Commission must examine every aspect of the utility's operations and economic environment in which the utility functions to ensure that the data it has received are representative of operating conditions that will, or should, prevail in future years." Id. (internal quotation marks omitted).

II. Analysis

[17] The rate-making methodology in this cause is controlled by the TDSIC Statute and two interrelated settlements reached by multiple parties-including the parties on appeal-and formalized by the Commission in two Orders. The parties do not contest the content of the settlements, nor is there a dispute surrounding the meaning of the statutory language; rather the disagreement before us focuses on the application of the agreements and the TDSIC statute in calculating the most recent rate adjustment.

[18] Pointing to the unambiguous language of the TDSIC Statute which requires the customer class revenue allocation factor to be based on firm load, the NIPSCO Industrial Group contends that in its calculation of the proposed rate adjustment in the TDSIC-2, NIPSCO allocated the revenue requirements based on total load, and then, in the second step, switched to firm load when computing the rate adjustment. The NIPSCO Industrial Group maintains that "[t]he governing statute requires use of firm load for the first step, allocation, but NIPSCO used total load for that step and did not shift to firm load until the second step." (Appellant's Br. p. 20). By allocating on a wider base and the adjusting rates on the smaller subset of firm load customers only, NIPSCO introduced a mismatch that overcharged firm load sales in rate classes with a combined interruptible load. In response, NISPCO and the Officer of the Utility Consumer Counselor (OUCC) appear to concede in their joint appellate brief that "under the TDSIC-2 calculation, the TDSIC adjustment is collected from all ratepayers, including those who take interruptible load." (Appellees' Br. p. 19). They posit that an allocation based on total load rather than firm load is "fair to all ratepayers" and "fairly spread costs across all customer classes." (Appellees' Br. pp. 28, 30).

[19] In support of its argument, the NIPSCO Industrial Group points to this court's decision in NIPSCO Indus. Group v. Northern Indiana Public Serv. Co. , 31 N.E.3d 1 (Ind. Ct. App. 2015), which it claims mirrors the instant situation. In NIPSCO Indus. Group , the most recent rate case had been resolved with a settlement featuring an allocation exhibit that did not separate out firm from interruptible load. Id. at 13-15. In setting a rate adjustment, NIPSCO proposed an adjustment to the exhibit factors to remove interruptible load in order to comply with the statutory "based on firm load" requirement, which was approved by the Commission over the OUCC's objection. Id. at 5. The OUCC contended that the allocation exhibit from the rate case settlement must be utilized without any modification. Id. Upon review, we concluded that "the allocation facts from the [ ] settlement agreement were based on both firm and non-firm load. Consequently, the adjustment to remove the non-firm load portion was within the Commission's discretion and expertise." Id. at 17.

[20] Turning to the cause before us, we reiterate that the TDSIC statute mandates that a periodic adjustment of a utility's basic rate must, among others, "use the customer class revenue allocation factor based on firm load approved in the utility's most recent retail base rate case order[.]" I.C. § 8-1-39-9(a)(1) (emphasis added). The most recent base rate case order applicable to TDSIC-2, as referenced in the Statute, is the "Commission's July 18, 2016, Order in Cause No, 44688." (Appellant's App. Vol. II, p. 13). Joint Exhibit D to Cause no. 44688, as incorporated in the TDSIC Settlement, recognized the customer class revenue allocation factors to be applied to firm load. Again, this same requirement of firm load was approved in the Settlement Agreement by incorporating Joint Exhibit D, which should be applied "for the periodic recovery of any approved capital TDSIC expenditures[.]" (Appellant's App. Vol. II, p. 152). However, as acknowledged by all parties, the factors of Joint Exhibit D themselves were determined based on total load.

[21] The contention before us revolves around NIPSCO's proposed calculation of the rate adjustment in TDSIC-2. In TDSIC-2, NIPSCO continued to base the initial allocation step on the Joint Exhibit D factors, without adjustment, as it had done in TDSIC-1. However, instead of continuing to use the total load, as in TDSIC-1, NIPSCO then switched to firm load when computing the unit rate adjustment. Thus, instead of spreading the costs of the adjustment over firm load and interruptible load and then applying the cost adjustment to firm load only, in TDSIC-2 NIPSCO burdened the cost increase on the firm load percentage only, thereby resulting in a higher price adjustment than when the calculation is computed over a larger customer base (firm plus interruptible load).

[22] The record reflects that at the time Joint Exhibit D was negotiated, the final percentage of interruptible load within each rate class was not yet known and as such, the parties reiterated on the face of the Exhibit that the allocation facts should be applied to firm load. In NIPSCO Indus. Group , we approved the removal of the interruptible portion from the allocation factors in computing the rate adjustment. We reach a similar decision here. The TDSIC Statute speaks to the first step-the customer class revenue allocation factor-which it bases on firm load only; the statute does not include any requirements as to the second step-computing unit charges to recover the allocated amount from customers within a given rate class. Therefore, it is not sufficient to merely APPLY the rate adjustment to firm load customers as was done in TDSIC-2, the CALCULATION itself must reflect the firm load basis, as we approved in NIPSO Indus. Group . In other words, merely applying the computed rate adjustment on firm load fails to comply with the TDSIC Statute which mandates that the adjustment itself uses the allocation factor based on firm load.

[23] We recognize that the Commission has "the technical expertise to administer regulatory schemes devised by the legislature." Indiana Office of Util. Consumer Counselor v. Lincoln Utilities, Inc. , 834 N.E.2d 137, 145 (Ind. Ct. App. 2005), trans. denied . "We also give great deference to the [Commission's] rate-making methodology." Id. However, the Commission's "authority is limited to that which is granted to it by statute." Id. at 142. We conclude that the Commission exceeded its statutory authority by allowing a rate adjustment based on allocation factors computed on total load.

CONCLUSION

[24] Based on the foregoing, we hold that the Commission failed to comply with Indiana Code section 8-1-39-9(a)(1), which requires allocation of rate adjustment to be based on firm load, by approving NIPSCO's computation which utilized an allocation based on total load.

[25] Reversed.

[26] May, J. and Mathias, J. concur


source: Caselaw Access Project

author: Baker, Judge.

license: Public Domain

text:
    Erica MANIS, Appellant-Petitioner v. Trista MCNABB, Appellee-Respondent
    Court of Appeals Case No. 18A-GU-96
    Court of Appeals of Indiana.
    Filed June 11, 2018
    Attorney for Appellant: Dorothy Ferguson, Anderson, Indiana
   Baker, Judge.

[1] Erica Manis (Mother) appeals the trial court's denial of her petition to terminate Trista McNabb's (Guardian) guardianship of her child, J.F. (Child), and its denial of her request for parenting time. She argues that the trial court erred by denying her petition to terminate the guardianship because the evidence showed that she was able to care for Child and that the trial court erred by concluding that it lacked authority to order parenting time for Mother. Finding that the trial court did not err by denying Mother's petition to terminate the guardianship, but that the trial court erred by refusing to consider Mother's request for parenting time, we affirm in part, reverse in part, and remand for further proceedings.

Facts

[2] Child was born in 2012. On December 14, 2015, Guardian filed a petition for appointment of a guardian for Child. A hearing took place on January 5, 2016, and the following day, the trial court appointed Guardian as Child's temporary guardian. On February 3, 2016, Mother filed a motion to terminate the temporary guardianship and a motion requesting parenting time. On February 26, 2016, Guardian filed a motion to extend the temporary guardianship. On March 10, 2016, the trial court ordered the temporary guardianship extended.

[3] Hearings took place on June 7 and 24, 2016, and July 21, 2016. On July 25, 2016, Mother was charged with unlawful possession or use of a legend drug, possession of a controlled substance, and possession of paraphernalia. On August 17, 2016, the trial court appointed Guardian as Child's permanent guardian. The trial court did not order parenting time for Mother, instead "leaving that issue to the discretion of the Guardian to act in the best interests of the minor child in maintaining meaningful contact with all family." Appellant's App. Vol. II p. 110.

[4] On March 6, 2017, Mother pleaded guilty to unlawful possession or use of a legend drug, and the other charges were dismissed. Mother was placed on probation and ordered to participate in random drug screens and treatment at a substance abuse rehabilitation center. On May 3, 2017, Mother filed a petition to terminate the guardianship, arguing that her condition had improved such that she could care and provide for Child, or in the alternative, requesting parenting time with Child. On May 11, 2017, the trial court denied Mother's request for parenting time, stating that no statutory or other authority existed under which the trial court could order parenting time during the guardianship proceeding.

[5] On May 10 and July 26, 2017, Guardian filed motions to dismiss Mother's petition to terminate guardianship. The trial court denied both of Guardian's motions. On August 18, 2017, Guardian filed a motion to establish child support. A hearing on Mother's petition to terminate guardianship and Guardian's motion to establish child support took place on October 12, 2017. On December 20, 2017, the trial court denied Mother's petition and granted Guardian's, making the following findings of fact and conclusions of law:

6. That after this Court imposed its original guardianship order, the Mother went inpatient at several facilities .... During her stay at [one facility] mother was alleged to have made threats of harm about the guardian. As such, the guardian, Trista McNabb obtained a protected order against mother.
***
8. Mother continues to reside with her grandparents who furnish her with everything she needs financially.
9. Mother testified that she hasn't worked in nearly two years but did recently try to work at Pizza King but quit that employment after only one-half day.
10. Mother has been in multiple car [collisions] in recent years, the most recent of which involved another car that was provided by her grandmother when she rear-ended another driver on August 31, 2017. In the two years prior, she had totaled two other cars through her own fault.
11. Mother currently is unemployed due to a broken leg which she received in a recent car accident, but has a pending application for Social Security benefits.
12. Jeannie Manis, grandmother of Mother, admitted that Mother had used her credit card without authorization. She admitted she had made Mother leave the house in fall of 2016 because she was being "disrespectful". When furnished with copies of electronic communications that Guardian argued was evidence of Mother was still engaging [sic] in drug seeking behavior, grandmother acknowledged that this was also another reason that Mother had been asked to leave.
13. Witness Lexi Manis recalled a similar incident where Mother had been asked to leave her grandmother's home again in summer of 2017, which lasted for only a short time.
***
18. Mother continues to maintain that she does not have a drug problem and maintains that she has not abused drugs in over two years. She claimed she had not "actively used" since before [Child] was born.
19. Mother testified that she attends treatment [at the substance abuse rehabilitation center through] individual counseling and a psychiatrist. Mother testified that she also attends Narcotics Anonymous and a local church.
20. There was evidence presented that as a result of mother's treatment ... she has seen a psychiatrist that has adjusted her medication. Mother's medication was adjusted in the summer of 2017. Such an adjustment has had a positive impact on mother.
21. Mother provided mental health records showing five visits she had ... between August 4, 2016, and April 11, 2017. These records are inconclusive to show progress is being made, as they fail to show regular appointments. The records indicate that [Mother] was not compliant with recommendations that were made.
22. The evidence is clear that Mother now has a better support network in place, than at the time of the imposition of the guardianship.
23. Family and friends have seen a change in mother's behaviors and attitudes over the past six months. Mother regularly watches her friend's grandchildren for long periods of time without issue.
24. The mother sets and manages her own probation, mental health and medical appointments.
25. Family members assist Mother to travel to her various appointments.
26. Mother has not had any contact with her son since the summer of 2016. At the time that [she] initially consented to the guardianship,[ ] Mother believed that her contact with her child would continue once permanent guardianship was granted.
27. It is also clear that at the time of the imposition of the permanent guardianship, Mother opposed it vigorously; aware that visitation would not be an issue that the Court would enter in the event of the imposition of the guardianship.
***
CONCLUSIONS OF LAW
***
2. The Court has taken in the well-being and best interests of the child in making its decision. It is the Court's conclusion that it is in the best interests of the child that the guardianship continue and DENIES Mother's request to terminate it herein.
3. The Court concludes that the guardian is entitled to an order of child support in the sum of $51.00 per week....
***
6. The limited mental records Mother submitted to the court were some months old, did not show that she was compliant with recommendations, and did not demonstrate or indicate her to be a fit parent to the extent that the Court was convinced that the need for the guardianship was no longer present; or that dismissing the guardianship would be in the best interests of the child.
7. Mother expressed belief that at the time of the imposition of the original guardianship, she did not have a mental health problem or substance abuse problem, instead believing [Child] was taken from her because she didn't have a job.
8. Mother's subsequent arrest, [and] lack of acceptance of her history of drug abuse have limited the progress which she has been able to make toward establishing independence despite the undoubted improvements that have been witnessed by family and friends.
9. The Court concludes that her claimed her [sic] "threat to harm the guardian" were not credible threats against the guardian when viewed in context of the evidence presented. When taken in context, they were generalized statements that do not and should not prevent her from having contact with the minor child herein.
10. The Court concludes that Guardian shall take all steps necessary to remove the child from being a protected party so as to permit contact or visitation. While the Court has no discretion in this cause to [ ] direct that Guardian seek to dismiss or the current protective order as it appl[ies] to herself; the Court would consider that factor in the future as to whether the current guardian is the best person suited to be guardian in the future.
11. As to parenting time/visitation with the child, the Court has long expressed its belief that it lacks authority in a Guardianship to order a parenting time/visitation schedule; the continued lack of contact with mother is a factor that the Court will consider the allowance or denial of that contact in the future in reviewing the continuing appropriateness of Guardian to serve in that capacity.

Appealed Order p. 3-7. Mother now appeals.

Discussion and Decision

[6] Mother raises three issues on appeal, which we consolidate and restate as: 1) whether the trial court erred by denying her petition to terminate guardianship, and 2) whether the trial court erred by concluding that it lacked authority to consider and determine parenting time for Mother.

I. Petition to Terminate Guardianship

[7] Mother argues that the trial court erred by denying her petition to terminate guardianship. Specifically, Mother argues that the evidence showed that she was able to care for Child and that Guardian failed to present any evidence to the contrary. Mother also contends that the evidence did not support the trial court's findings of fact or conclusions of law.

[8] Indiana Code section 29-3-12-1(c)(4) provides that the trial court may terminate any guardianship when the guardianship is no longer necessary. "All findings and orders of the trial court in guardianship proceedings are within its discretion." In re Guardianship of Hollenga , 852 N.E.2d 933, 936 (Ind. Ct. App. 2006) (citing I.C. § 29-3-2-4(a) ). We review custody decisions for error, with a "preference for granting latitude and deference to our trial judges in family law matters." Matter of Guardianship of I.R. , 77 N.E.3d 810, 813 (Ind. Ct. App. 2017). In determining whether the trial court erred, we review the court's findings and conclusions, which we may not set aside unless they are clearly erroneous. Id. We will consider the evidence most favorable to the judgment with all reasonable inferences drawn in favor of the judgment, and we will not reweigh the evidence nor will we reassess the credibility of witnesses. Id.

[9] Pursuant to Indiana Code section 31-14-13-6, child custody may not be modified unless the modification is in the best interests of the child and there is a substantial change in one or more of the factors that the court may consider under section 31-14-13-2. In re Guardianship of L.R.T. , 979 N.E.2d 688, 690 (Ind. Ct. App. 2012). When a parent initiates an action to reobtain custody of a child who has been in the custody of another, the burden of proof does not shift to the parent, but instead is on the third party. Matter of Guardianship of I.R. , 77 N.E.3d at 813. There is a strong presumption that a child's interests are best served by placement with the natural parent. Id. A parent's burden to show a modification of custody is justified is "minimal," and after meeting "this 'minimal' burden of persuasion to terminate the guardianship, the third party has the burden to prove by clear and convincing evidence that the child's best interests are substantially and significantly served by placement with another." Id. (internal quotation marks and citation omitted).

[10] Mother argues that the trial court erred by finding that it was in Child's best interest for the guardianship to continue in light of four findings of fact that the trial court made: that Mother's medication had helped her, that Mother has a support network in place, that family and friends have seen a change in Mother and that Mother watches her friend's grandchildren, and that Mother manages her own appointments.

[11] Initially, we note that Mother provided an incomplete record that does not include Guardian's petitions for temporary and permanent guardianship. Thus, we do not know what prompted Guardian to file her petitions, and we are unable to compare Mother's situation at the time of the October 12, 2017, hearing to her situation when the guardianship was ordered. As a result, we are unable to discern whether there was a substantial change in one or more of the factors that a trial court considers for modification of child custody. In addition, Mother's argument regarding these four findings of fact is a request that we reweigh the evidence and reassess the credibility of the witnesses-an invitation which we decline.

[12] During the hearing, testimony was elicited that Mother lives with her grandparents, is financially dependent on them for her needs, and would be financially dependent on them for Child's needs; that Mother's grandmother had asked her twice to leave their home for being disrespectful, for using her grandmother's credit cards without permission, and for using drugs; that Mother has been unemployed for nearly two years and that her most recent attempt at working ended after one-half day; and that Mother is responsible for three recent car accidents, two of which resulted in totaled cars. In other words, the evidence showed that Mother's living situation was not completely stable; that Mother was not working on becoming self-sufficient; and that Mother was either unable or unwilling to make safe decisions for herself. Guardian met her burden to prove by clear and convincing evidence that Child's best interests are substantially and significantly served by placement away from Mother.

[13] Mother also challenges three of the trial court's findings of fact and conclusions of law. First, she challenges the trial court's finding of fact that she has not had any contact with Child since summer of 2016, arguing that the lack of contact between Mother and Child cannot be attributed to Mother. The record supports this finding, and we note that the trial court did not attribute it to Mother nor did it base its conclusion on this finding. Instead, the trial court implicitly acknowledged Guardian's role in keeping Mother from Child, concluding that Mother's threat to Guardian was not credible and should not prevent her from having contact with Child and that Guardian should act to remove Child from being a protected party under the protective order.

[14] Mother also challenges the trial court's conclusion that "Mother expressed belief that at the time of the imposition of the original guardianship, she did not have a mental health problem or substance abuse problem, instead believing [Child] was taken from her because she didn't have a job." Appealed Order p. 6. Mother argues that this conclusion is an error because she believed that the guardianship was ordered based on her substance abuse issues and recent arrest. During cross-examination, Guardian's counsel asked Mother about a mental health record from March 2, 2017, that reported that Mother presented symptoms of substance abuse and appeared to be impaired; Mother denied that she had been abusing substances or impaired at that time. Guardian's counsel also asked about a mental health record from September 21, 2016, that stated that Mother had arrived at the treatment center acting suspicious and odd and had admitted herself. Mother denied admitting herself for treatment or that she had acted suspicious or odd. This testimony supports the trial court's conclusion that Mother believed that she did not have mental health or substance abuse problems.

[15] As to the trial court's conclusion that Mother believed Child was placed under a guardianship because she was unemployed, we agree with Mother that the record does not support this conclusion. However, Mother fails to show how she was prejudiced by this conclusion or how her belief about why the guardianship was ordered affects the outcome of this case. Therefore, Mother's argument on this point is unavailing.

[16] Finally, Mother contests the trial court's conclusion that her "subsequent arrest, [and] lack of acceptance of her history of drug use have limited the progress which she has been able to make toward establishing independence despite the undoubted improvements that have been witnessed by family and friends." Id. Mother argues that this conclusion is a contradiction that contrasts the findings of fact. We see no contradiction. The trial court recognized that although Mother had made some improvements in her life, she could have progressed even further in establishing self-sufficiency if she had taken responsibility for her actions and avoided another arrest and additional drug use. This conclusion is easily supported by the findings of fact, which recognized that Mother had taken some positive steps in her life but also continued to face real, and often self-imposed, obstacles.

[17] In sum, the trial court did not err by denying Mother's petition or in its findings of fact and conclusions of law.

II. Parenting Time

[18] Mother next argues that the trial court erred by concluding that it lacked statutory or other authority to determine parenting time for Mother.

[19] The issue of whether a trial court has statutory or other authority to determine and order parenting time for a parent whose child is placed with a guardian is a matter of first impression. While no statute explicitly grants trial courts this authority in guardianship proceedings, no statute precludes it, either. And because our General Assembly has clearly intended for noncustodial parents to have parenting time unless it would endanger or impair the physical or mental health of the child, we find that a trial court has the authority to determine and order parenting time for a parent whose child is placed with a guardian.

[20] The Fourteenth Amendment to the United States Constitution protects the traditional right of parents to establish a home and raise their children. Bester v. Lake Cty. Office of Family & Children , 839 N.E.2d 143, 147 (Ind. 2005). Our society considers the parent-child relationship to be "one of the most valued relationships." Id. (internal quotation marks and citation omitted). The liberty interest " 'of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests recognized by this Court.' " Perkinson v. Perkinson , 989 N.E.2d 758, 761 (Ind. 2013) (quoting Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ). " 'It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' " Id. (quoting Prince v. Massachusetts , 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) ). Our society reflects " 'a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.' " Id. (quoting Wisconsin v. Yoder , 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) ).

[21] Our Supreme Court explained that " 'Indiana has long recognized that the right of parents to visit their children is a precious privilege that should be enjoyed by noncustodial parents,' " and thus a noncustodial parent is " 'generally entitled to reasonable visitation rights.' " Id. at 762 (quoting Duncan v. Duncan , 843 N.E.2d 966, 969 (Ind. Ct. App. 2006) ). Indiana Code section 31-17-4-2 provides that parenting time rights shall not be restricted unless there is a finding "that the parenting time might endanger the child's physical health or significantly impair the child's emotional development." Our appellate courts have interpreted this statute to require evidence establishing that visitation would endanger or impair the physical or mental health of the child. Perkinson , 989 N.E.2d at 763. A trial court is empowered to specify and enforce the visitation rights of the noncustodial parent pursuant to Indiana Code. Id. at 762.

[22] The preamble to the Indiana Parenting Time Guidelines states that the Guidelines "are based on the premise that it is usually in a child's best interest to have frequent, meaningful and continuing contact with each parent." The Guidelines further provide that "[a] child has the right both to support and parenting time ...." Ind. Parenting Time Guidelines § I(E)(5). Indiana has a "legislatively-expressed presumption in favor of parenting time with the noncustodial parent." Perkinson , 989 N.E.2d at 764. "[N]ot only does a noncustodial parent have a presumed right of parenting time, but the child has the correlative right to receive parenting time from the noncustodial parent because it is presumed to be in the child's best interest." Id. "Extraordinary circumstances must exist to deny parenting time to a parent, which necessarily denies the same to the child." Id. at 765.

[23] Thus, our General Assembly clearly intended for parents to have parenting time, barring exceptional circumstances, when the parent and child do not live together. Despite the lack of a statute explicitly addressing parenting time for a parent whose child has been placed with a guardian, parenting time for such a parent is indisputably within the realm of what our General Assembly envisioned when considering the rights of a parent and the best interests of the child. A trial court that orders parenting time for such a parent is, therefore, effecting the legislature's intent. Accordingly, we hold that a trial court has the authority to determine whether parenting time is warranted and order reasonable parenting time for a parent whose child is placed with a guardian. In so doing, a trial court must balance a parent's right to visit his or her child with the best interests of the child. And in ordering parenting time in these cases, it would be best practice for a trial court "to make specific findings to support its parenting time order." Perkinson , 989 N.E.2d at 765.

[24] Here, Mother has clearly expressed a desire to be part of Child's life. At the time of the October 12, 2017, hearing, she had not seen Child since July 2016. Regarding Mother's request for parenting time, the trial court simply accepted Guardian's opinion as to whether Mother should be able to see Child. And in its order, the trial court ordered Guardian to "take all steps necessary to remove the child from being a protected party so as to permit contact or visitation" and stated that it would consider "the continued lack of contact with mother" when reviewing the continuing appropriateness of Guardian to serve as the guardian in the future. Appealed Order p. 6-7. In other words, the trial court allowed a partial third party to decide whether and how much Mother should be able to enjoy her constitutionally-protected " 'precious privilege' " and right to visit her child. Perkinson , 989 N.E.2d at 762 (quoting Duncan , 843 N.E.2d at 969 ).

[25] We find that the trial court erred. First, for the reasons discussed above, we find that the trial court erred by not considering Mother's request for parenting time or determining whether and how much parenting time was appropriate. Second, we find that the trial court erred by deferring to Guardian's judgment about Mother's parenting time. We simply do not understand why the trial court would defer to Guardian, a person with a subjective perspective and invested stake in the matter, about Mother's constitutionally-protected right to see her son. Guardian, having disregarded Mother's position as Child's mother and Mother's wishes to see Child, had already prevented Mother from seeing Child for well over a year for a reason that the trial court concluded was unfounded. And still the trial court left future parenting time to Guardian's discretion, thereby potentially further depriving Mother and Child of time together and an opportunity to develop a meaningful relationship and bond.

[26] We cannot state strongly enough that a trial court should not allow a third party alone to determine a parent's parenting time with his or her child during guardianship proceedings. If parties cannot agree on their own to a plan that is in the best interests of the child, then the trial court must take an active role in developing one. See Ind. Parenting Time Guidelines § II(A) ("When the parties cannot reach an agreement on a parenting plan, the specific provisions which follow are designed to assist parents and the court in the development of a parenting plan. They represent the minimum recommended time a parent should have to maintain frequent, meaningful, and continuing contact with a child") (emphasis added). We reverse the trial court's order that it cannot determine parenting time for Mother and remand for further proceedings consistent with this opinion.

[27] The judgment of the trial court is affirmed in part, reversed in part, and remanded for further proceedings.

Kirsch, J., and Bradford, J., concur.

      The record does not reveal what prompted Guardian to file her petition or the substance of any pleadings or hearings regarding the appointment of a temporary, and later, a permanent, guardian.

      The record does not reveal if or when Mother consented to the guardianship.

      Guardian has not filed an appellate brief in this case. Accordingly, we may reverse if Mother presents a prima facie case of error. In re Riddle , 946 N.E.2d 61, 70 (Ind. Ct. App. 2011). "Prima facie error is error at first sight, on first appearance, or on the face of it." Sand Creek Country Club, Ltd. v. CSO Architects, Inc. , 582 N.E.2d 872, 876 (Ind. Ct. App. 1991) (internal quotation marks and citation omitted).

      Relevant factors include (1) the age and sex of the child, (2) the wishes of the child's parents, (3) the wishes of the child, (4) the interaction and interrelationship of the child with the child's parents, siblings, and any other person who may significantly affect the child's best interest, (5) the child's adjustment to home, school, and community, (6) the mental and physical health of all individuals involved, (7) evidence of a pattern of domestic or family violence by either parent, and (8) evidence that the child has been cared for by a de facto custodian.

      Nonetheless, trial courts have awarded parenting time in this situation. See , e.g. , In re B.J.N. , 19 N.E.3d 765, 769-70 (Ind. Ct. App. 2014) (discussing restriction of parenting time and requirement that it be supervised for father whose child was placed with a guardian); see also In re Guardianship of A.L.C. , 902 N.E.2d 343, 355-58 (Ind. Ct. App. 2009) (trial court determined that father should have parenting time with child who was placed with a guardian because it was in child's best interests).

      During the hearing, the trial court asked Guardian under what circumstances she thought it would be appropriate for Mother and Child to visit; Guardian's counsel then asked Guardian what Mother would need to do to obtain visitation or terminate the guardianship.


author: Vaidik, Chief Judge.

text:
    James T. HOREJS, James Harris, and Robert Horejs, as Co-Administrators of the Estate of Laura A. Shaner, Deceased, Appellants-Plaintiffs, v. Albert MILFORD, D.O., St. Margaret Mercy Healthcare Centers, Inc., and TRC-Indiana, LLC d/b/a Comprehensive Renal Care-Munster d/b/a DaVita, Inc., Appellees-Defendants
    Court of Appeals Case No. 45A03-1709-CT-2173
    Court of Appeals of Indiana.
    Filed June 14, 2018
    Attorneys for Appellants: Timothy S. Schafer, Timothy S. Schafer, II, Todd S. Schafer, Schafer & Schafer, Merrillville, Indiana
    Attorneys for Appellee: St. Margaret Mercy, Healthcare Centers, Inc.: Libby Yin Goodknight, Krieg DeVault LLP, Indianapolis, Indiana, Julie A. Rosenwinkel, Shannon L. Noder, Krieg DeVault LLP, Merrillville, Indiana
    Attorney for Appellee: Albert Milford, D.O.: Jason A. Scheele, Rothberg Logan & Warsco LLP, Fort Wayne, Indiana
    Attorneys for Appellee: TRC-Indiana, LLC: Leslie B. Pollie, Travis W. Montgomery, Kopka Pinkus Dolin PC, Carmel, Indiana
   Vaidik, Chief Judge.

[1] Indiana's general wrongful-death statute, Indiana Code section 34-23-1-1, establishes two categories of damages-what we will call "final-expense damages" and "survivor damages." The statute provides that if the decedent is not survived by a spouse, dependent children, or dependent next of kin, the decedent's personal representative can recover, on behalf of the decedent's estate, only final-expense damages: medical expenses related to the decedent's last illness or injury; funeral and burial expenses; and expenses of administering the estate and pursuing the wrongful-death action, including a reasonable attorney's fee. If the decedent is survived by a spouse, dependent children, or dependent next of kin, the decedent's personal representative can recover both the final-expense damages on behalf the decedent's estate and survivor damages, including lost earnings of the decedent, on behalf of the statutory beneficiary/ies.

[2] This appeal presents the issue of what happens when one of the statutory beneficiaries enumerated in the statute (in this case, a spouse) survives the wrongful-death decedent but then dies himself while the wrongful-death action is still pending-that is, what happens when the survivor who would have collected the survivor damages has ceased being a "survivor"? Our Supreme Court addressed this question in Bemenderfer v. Williams , 745 N.E.2d 212 (Ind. 2001), where a man named Hoy Sturgeon survived his wife Dorothy and filed a wrongful-death action but then died himself before the action had concluded. The question was whether Hoy's claim for survivor damages could be carried on by the elderly couple's daughter, who, as Hoy's heir, stood to ultimately recover the damages. The Court held that she could.

[3] Here, as in Bemenderfer , a husband filed a wrongful-death action after the death of his wife but then died himself while the action was still pending. However, there is one key difference-the husband died without any heirs, so that any survivor damages recovered on his behalf would ultimately pass ("escheat") to the state. We must decide whether the deceased husband's/beneficiary's claim for survivor damages can be carried on under these circumstances. We hold that it cannot.

[4] The alleged wrongful-death decedent in this case is Laura Shaner, who died in January 2006. In November 2007, Laura's husband David, individually and on behalf of Laura's estate ("Laura's Estate" or "the Estate"), sued Dr. Albert Milford, St. Margaret Mercy Healthcare Centers, Inc., and TRC-Indiana, LLC d/b/a Comprehensive Renal Care-Munster d/b/a DaVita ("the Providers"). David alleged that the Providers had been negligent in their care of Laura and caused her death. His complaint included a claim for the following survivor damages under the wrongful-death statute:

loss of [Laura's] earnings and wages, loss of additional employment benefits which he enjoyed as a result of said [Laura's] employment, loss of the reasonable value of [Laura's] services, and further, the loss of love, affection, companionship, society and support as well as protection provided by [Laura] to [David].

Appellants' App. Vol. II p. 53.

[5] While the case was still pending, David himself died, leaving no will and no heirs (David and Laura didn't have any children, and David's mother, who would have been his only heir, died at the same time as he did). Laura's Estate continued prosecuting the lawsuit relating to Laura's death, but David's death prompted the Providers to file a motion for partial summary judgment. They asserted that because David died without heirs, any survivor damages he would have received in relation to Laura's death (had he lived) would now instead pass to the state under Indiana Code section 29-1-2-1(d)(8), "would not compensate any party who suffered a pecuniary loss due to the death of Laura Shaner as contemplated under the Wrongful Death Statute," and "would only serve as punishment to Defendants." Id. at 32-45. The Providers argued that Laura's Estate should not be able to recover such damages and should be limited to the final-expense damages outlined in the wrongful-death statute. The trial court granted the Providers' motion, and Laura's Estate appeals. We review motions for summary judgment de novo. Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014).

[6] Laura's Estate contends that it should be able to pursue David's survivor damages under our Supreme Court's decision in Bemenderfer . The Estate correctly notes that the Bemenderfer Court's stated holding was that "the wrongful death statute does not operate to preclude the statutory beneficiary who dies before judgment from recovering wrongful death damages." 745 N.E.2d at 215. The Estate argues that because this passage says nothing about the statutory beneficiary leaving an heir who would ultimately collect the beneficiary's survivor damages, it can continue David's claim for such damages even though he had no heirs and those damages would eventually pass to the state. We disagree.

[7] As we noted at the outset, the statutory beneficiary who died in Bemenderfer , Hoy Sturgeon, did have an heir, and that fact was central to the Supreme Court's decision. In holding that Hoy's daughter, as his heir, could continue Hoy's quest for survivor damages arising from the death of his wife Dorothy, the Court explained:

Hoy was eighty-two and suffering from Alzheimer's and Parkinson's when his wife died. He lost his life-long companion and caregiver. When Dorothy died, Hoy was placed in a nursing home and soon deteriorated to the point that he could not comprehend his wife's death and lost all will to live. This human tragedy was compounded by its financial effect. Hoy's estate was depleted by the additional expenses, and this loss was ultimately visited on his heirs. The wrongful death defendant should not benefit from the early death of a beneficiary, and certainly not from a death that was likely accelerated by a defendant's own wrongdoing. At least under these circumstances, the very purpose of the law invoked by Bemenderfer-compensation of pecuniary loss-is furthered by allowing recovery.

Bemenderfer , 745 N.E.2d at 218 (emphasis added). The emphasized language (which Laura's Estate was careful to exclude from its brief) shows that the Court's holding turned on Hoy having an heir who would suffer a pecuniary loss if she couldn't recover the survivor damages Hoy himself would have recovered if he had lived until the wrongful-death case was wrapped up. That is, the holding turned on the fact that an heir of the deceased statutory beneficiary would receive a smaller inheritance absent an award of survivor damages.

[8] Here, because David left no heirs, there is no one left who can say that they will receive a smaller inheritance-that they would suffer a "pecuniary loss"-if David's claim for survivor damages is terminated. In another case decided the same day as Bemenderfer , the Supreme Court reaffirmed that the purpose of the wrongful-death statute is to compensate for pecuniary loss caused by the death of the decedent, not to punish the defendant. Durham ex rel. Estate of Wade v. U-Haul Int'l , 745 N.E.2d 755, 763-64 (Ind. 2001). Requiring the Providers to pay survivor damages in this case-damages that would simply pass to the state-would serve only to punish the Providers.

[9] Laura's Estate maintains that the Providers will "avoid accountability" if they don't have to pay survivor damages. Appellants' Rev. Br. p. 14. That may be true, but it is consistent with the wrongful-death statute, which specifically contemplates that some fortunate defendants will not have to pay survivor damages. The legislature could change the statute so that all defendants are treated the same, but it has so far chosen not to do so.

[10] Laura's Estate also asserts that our holding will give wrongful-death defendants an incentive to "continue and delay cases as long as possible with the hopes that the statutory beneficiary will die." Id. But that is true only if the statutory beneficiary has no heirs-as established in Bemenderfer , an heir of a statutory beneficiary can pursue that beneficiary's claim for survivor damages even if the beneficiary dies while the claim is still pending. Moreover, a statutory beneficiary can usually avoid having no heirs. Here, David could have created heirs-and kept the Providers on the hook for survivor damages-simply by executing a will. He didn't, so he has no heirs, and any survivor damages would pass to the state. That would be contrary to the compensatory purpose of the wrongful-death statute. Therefore, we affirm the trial court's grant of the Providers' motion for partial summary judgment.

[11] Affirmed.

Barnes, J., and Pyle, J., concur.

      Laura's Estate also asserts that David did, in fact, have an heir: a Pennsylvania woman named Aileen Waltman. However, the first mention of Ms. Waltman was in an affidavit attached to a motion to reconsider filed by Laura's Estate a month after the trial court's summary-judgment order. The trial court rejected that affidavit as untimely, and Laura's Estate doesn't challenge that ruling on appeal, so we must proceed as though David died without heirs.


author: Barnes, Judge.

text:
    Angela BREWER, Individually and as Personal Representative of the Estate of Rickey A. Brewer, Deceased, Appellants, v. PACCAR, INC., d/b/a Peterbilt Motors Co., Appellee.
    Court of Appeals Case No. 55A05-1709-CT-2168
    Court of Appeals of Indiana.
    Filed June 15, 2018
    Attorneys for Appellant: John P. Daly, Jr., Jared Harts, Golitko & Daly, P.C., Indianapolis, Indiana
    Attorneys for Appellee: Jeffrey J. Mortier, Maggie L. Smith, Blake N. Shelby, Frost Brown Todd, LLC, Indianapolis, Indiana
    OPINION ON REHEARING
   Barnes, Judge.

[1] PACCAR, Inc. d/b/a Peterbilt Motors ("PACCAR") petitions for rehearing following our decision in Brewer v. PACCAR, Inc. , 98 N.E.3d 83 (Ind. Ct. App. 2018). We issue this opinion on rehearing but reaffirm our original decision in all respects.

[2] In an argument that is relevant to the bar in general and not PACCAR in particular, PACCAR asserts that we should not have said that Brewer's notice of appeal may have been premature because it was filed before the time limit for the trial court to rule on Brewer's motion to correct error had passed. It contends that it is "not unusual" for a party to file both a motion to correct error and a notice of appeal simultaneously, "or for the same party to first file a Motion to Correct error, change its mind, and then file a Notice of Appeal before the thirty-day period expires." Rehearing Pt'n. p. 7. It also notes Indiana Appellate Rule 37, which allows a party on appeal to move to stay appellate proceedings and remand to the trial court for a ruling on a pending motion to correct error.

[3] We respectfully submit that, in the combined fifty-four years of appellate experience of the members of this panel, we were unaware of a common practice of parties filing motions to correct error and then "abandoning" the motion with the filing of a notice of appeal before the time limit for ruling on the motion to correct error had passed. With respect to Appellate Rule 37, its use is encouraged " 'to develop an evidentiary record for issues that with reasonable diligence could not have been discovered before the time for filing a motion to correct error or a notice of appeal has passed.' " Peaver v. State , 937 N.E.2d 896, 899 (Ind. Ct. App. 2010) (quoting Schlabach v. State , 842 N.E.2d 411, 418 (Ind. Ct. App. 2006), trans. denied ), trans. denied . It should not be used to resurrect a motion to correct error previously filed by the party seeking remand that did not require development of an additional evidentiary record and was more in the nature of asking the trial court to reconsider its judgment, such as in the present case.

[4] Even if our trial and appellate rules do not expressly forbid the simultaneous filings of motions to correct error and notices of appeal by one party-or the filing of a notice of appeal before a motion to correct error has been ruled on or deemed denied-we believe it is inadvisable to do so. Or, at the very least, if a party files both a motion to correct error and a notice of appeal but decides to "abandon" the motion to correct error, the party should dismiss the motion to correct error so there is no potential confusion about whether the trial court or this court is being asked to decide the case. Leaving a motion to correct error pending after filing a notice of appeal risks judicial inefficiency and the possibility that the trial court will rule on the motion to correct error after an appeal has been initiated. Although this is not always a fatal complication, it is a complication nonetheless and can lead to convoluted procedural wrangling as outlined in cases such as Cavinder Elevators, Inc. v. Hall , 726 N.E.2d 285 (Ind. 2000), Garrison v. Metcalf , 849 N.E.2d 1114 (Ind. 2006), and HomEq Servicing Corp. v. Baker , 883 N.E.2d 95 (Ind. 2008). If such wrangling can be avoided, it is preferable to do so.

[5] Indeed, in the present case, it appears that Brewer filed her notice of appeal only after believing the trial court had denied her motion to correct error; although, as noted in our original opinion, it is not entirely clear that the trial court had done so. This was not an instance of Brewer intentionally "abandoning" the motion to correct error. We believe that if a party files a motion to correct error, ideally it should either wait for a ruling on the motion (actually granted or denied or deemed denied) before initiating the process of an appeal, or it should dismiss the motion to correct error.

[6] PACCAR's other argument on rehearing is directed to certain language in our opinion that it contends could be taken as conclusively stating that its glider kit is defective. We did not hold that it is defective as a matter of law-that is a matter to be litigated below. Our opinion already makes that clear.

[7] With these comments, we reaffirm our original decision.

Vaidik, C.J., and Mathias, J., concur.


text:
    In the MATTER OF: A.Q., K.Q., and R.Q. (Minor Children),
    R.O. (Mother) and C.Q. (Father), Appellants-Respondents, v. Indiana Department of Child Services, Appellee-Petitioner
    Court of Appeals Case No. 47A05-1710-JC-2353
    Court of Appeals of Indiana.
    Filed June 18, 2018
    Attorney for Appellant R.O. (Mother): Nicole A. Zelin, Pritzke & Davis, LLP, Greenfield, Indiana
    Attorney for Appellant C.Q. (Father): Linda Klain, Law Office of Linda B. Klain, LLC, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General, Robert J. Henke, Deputy Attorney General, Indianapolis, Indiana
    Case Summary
   Vaidik, Chief Judge.

[1] In children in need of services (CHINS) cases, the Department of Child Services (DCS) sometimes proposes changes to the trial court regarding the permanency plan for the children. At the start of the CHINS case, the permanency plan typically calls for reunification of the children with their parents. As the CHINS case proceeds, however, DCS may recommend a number of changes to the plan, including termination of the parents' rights. We determine that when the trial court approves DCS's proposal to change a permanency plan from reunification to termination in a CHINS case, the decision is generally not suitable for interlocutory appeal, particularly where, as here, reunification services are not terminated, because parents are unable to prove actual harm by the change in the permanency plan. Rather, the parents are only able to show the potential for future harm-termination of their parental rights.

[2] In the matter before us, R.O. ("Mother") and C.Q. ("Father") bring their interlocutory appeal challenging the trial court's order approving changes in the permanency plans in their children's CHINS cases from reunification to termination. This Court's motions panel accepted jurisdiction of the interlocutory appeal, and the parties fully briefed the case. Accordingly, we address the merits of the parents' claims. Finding no error, we affirm.

Facts and Procedural History

[3] Mother and Father are a non-traditional couple; Father is seventy-nine years old, and Mother is twenty-seven years old. They have a long history with DCS that dates back to 2006. At that time, DCS substantiated a claim of sexual misconduct with a minor against Father; Mother, who was fifteen years old at the time, was the victim. Since then, however, Mother and Father have continued their relationship and have three children together: A.Q., K.Q., and R.Q., born in 2010, 2012, and 2015, respectively.

[4] In 2013, DCS substantiated claims of neglect of A.Q. and K.Q. against both Mother and Father due to a domestic-violence incident between the parents. Two months later, A.Q. and K.Q. both presented with injuries, and DCS again substantiated claims of neglect against Mother and Father. A.Q. had several physical injuries, some of which were over a year old, and K.Q. had a knot on the back of her head. Tr. Vol. VII pp. 82, 86. A.Q. and K.Q. were removed from the home and later adjudicated CHINS. Mother and Father engaged in services with DCS, and the children were ultimately returned to their care.

[5] Less than two years later, DCS received an allegation that A.Q. had been physically abused. A.Q. "had several marks and bruises on her," including a bruise about "1 ½ inches in diameter on her chin that was purple." Id. at 7. DCS responded the same day and went to Mother and Father's house to speak with them and A.Q. Upon seeing the "almost black" bruise on A.Q.'s chin and other bruises on her head, DCS told Mother and Father to take A.Q. to the hospital. Id. Photographs of the bruises were taken and sent to a doctor at Riley Hospital for Children. Based on the photographs and A.Q.'s medical records, the doctor concluded that A.Q. was injured as a result of physical abuse. The doctor told DCS, "To obtain an injury to that degree, there must have been a lot of force behind it..... [A.Q.] was either propelled to the floor or someone hit her directly under the chin." Id. at 8. The doctor also stated that the other injuries to A.Q.'s head were consistent with A.Q. being grabbed or slapped. Mother and Father both stated that they did not know how A.Q. was injured and that the bruise appeared after A.Q. came home from school. DCS immediately removed A.Q. and K.Q. from the home and placed them with Father's granddaughter ("foster mother"). At the time of removal, Mother was pregnant with R.Q. On January 28, DCS filed CHINS petitions for both A.Q. and K.Q., and three months later, the children were adjudicated CHINS.

[6] Meanwhile, the Lawrence County Sheriff's Department was informed of A.Q.'s injuries and launched a criminal investigation. In March 2015, Mother was charged with Level 5 felony battery of a child less than fourteen years old. The criminal court issued a no-contact order for Mother and A.Q.

[7] A dispositional hearing in the CHINS cases was held in June 2015. Six days later, Mother gave birth to R.Q. Because of the CHINS adjudications for A.Q. and K.Q., DCS removed R.Q. from Mother and Father's care while still in the hospital. R.Q. was also placed with foster mother, and DCS filed a CHINS petition for R.Q. On September 8, the court entered its dispositional order in A.Q. and K.Q.'s CHINS cases. Mother and Father were ordered, in part, to maintain weekly contact with the Family Case Manager (FCM), keep all appointments with service providers, engage in home-based counseling, and have supervised visits with A.Q. and K.Q. The permanency plan for A.Q. and K.Q. was reunification with Mother and Father.

[8] Around the same time as the dispositional order, A.Q. disclosed that Father had sexually abused her, and DCS substantiated the claim. K.Q. also made statements that Mother and Father had abused A.Q., but K.Q.'s disclosures had already been investigated by DCS. DCS moved to cease all parenting time and visitation for both parents and all three children. In January 2016, the court ordered that all parenting time and communication with A.Q. and her parents cease. However, the court ordered that K.Q. and R.Q. should continue to have supervised visitation with Mother and Father. It was also ordered that A.Q. and K.Q. undergo psychological evaluations to determine if they had been coached regarding the disclosures of abuse.

[9] Dr. Linda McIntire conducted the psychological evaluations. She met with Mother and Father and met individually with A.Q. and K.Q. Based on her interactions with Mother and Father, Dr. McIntire believed that they had not made any progress in their therapy because they "would not own that they'd done anything wrong," and she found their level of denial to be "pretty concerning." Tr. Vol. IV pp. 187, 206. Regarding her time with A.Q. and K.Q., Dr. McIntire noted that, over the course of the multi-day evaluation, K.Q. refused to discuss Father at all but was willing to talk about Mother. Dr. McIntire stated, "[W]hen a child refuses to speak, that is a painful avoidance. That is not coaching." Id. at 143. Dr. McIntire ultimately concluded that neither child had been coached regarding their disclosures of abuse. She explained that Mother and Father's claim of coaching was a "manifestation of their pervasive denial of any wrong-doing, any problems, and any culpability relative to their children[.]" Appellants' App. Vol. II p. 197.

[10] Meanwhile, R.Q.'s CHINS case and Mother's criminal case were moving forward. In January 2016, the court held a fact-finding hearing in R.Q.'s CHINS case. R.Q. was adjudicated a CHINS and a dispositional order was entered in April 2016. In part, the parents were ordered to participate in individual and couples therapy, contact the FCM at least once a week, and participate in home-based services. The permanency plan for R.Q. was reunification. As for Mother's criminal case, she pled guilty in January 2016 to battery of a child less than fourteen years old. She was sentenced to three years of supervised probation and forty hours of community service. The criminal court also ordered her to cooperate fully with DCS.

[11] In July 2016, DCS petitioned the court to approve changes in the permanency plans for all three children from reunification to termination. In its motion, DCS argued that the change was necessary because of the "lack of progress" Mother and Father had made with service providers and because of the "need for these children to live in a safe and permanent home." Id. at 212. A multi-day permanency hearing began on October 31 and concluded on July 18, 2017.

[12] In December 2016, while the permanency hearing was still ongoing, the trial court ordered Mother and Father to submit to psychological evaluations. Dr. Bart Ferraro conducted both evaluations. Regarding Mother, Dr. Ferraro noted that she was "stress sensitive, psychologically immature ... apt to repeat problems and be slow to learn from her experience." Appellants' App. Vol. III p. 3. He added that Mother "will demonstrate difficulty over time attuning, appreciating, and addressing satisfactorily, the needs and feelings of others." Id. As for Father, Dr. Ferro found that Father, like Mother, "has an ability to rise to a higher level of functioning for a delimited period, but may, over time and unmonitored, gravitate to more deficient habits and patterns should external support and guidance be removed." Id. at 16.

[13] Over the course of the hearing, multiple DCS service providers testified. The providers stated that Mother and Father were some of the most compliant parents that they had every worked with, attending every appointment. However, most of the providers noted that Mother and Father had made no progress in services, especially individual therapy. FCM Christina Taylor said that Mother and Father had attended every therapy session but that they refused to take any responsibility for the January 2015 injuries to A.Q. FCM Taylor further testified that the goals of the dispositional decree had not been met and that the reason for removal had not been remedied. She also explained that changes in the permanency plans would not result in DCS terminating services for Mother and Father.

[14] George Freeman, who was the parents' therapist in their 2013 CHINS case, was again appointed as Mother and Father's therapist. He provided the parents with individual and couples counseling. Freeman stated that the parents would not admit that there was any kind of problem with their parenting style and that they were not at fault for any of the injuries. Tr. Vol. V pp. 92, 95. He opined that the parents were at a "stalemate" with DCS because the parents wouldn't admit to any wrongdoing. Id. at 92. He added that Father blames the foster mother, DCS, and the service providers for his and Mother's current situation. Id. at 118. Nevertheless, Freeman stated that he had no concerns with the children being placed back in the parents' home. He admitted that he had made a similar recommendation in the 2013 CHINS case, that A.Q. and K.Q. were returned to Mother and Father's care, and that the children were removed again in 2015 for the same reasons they were removed in 2013.

[15] A.Q. and K.Q.'s therapist, Lowry Adams, testified that the children were thriving in their foster home. Adams noted that K.Q. had some regression in her behavior-throwing herself down on the floor screaming-because she did not want to go on visits to Mother and Father's house or have nightly phone calls with them. She added that A.Q. was "terrified of her biological parents" but had been able to improve in therapy because she felt safe in her foster home and had not gone on visits with her parents. Tr. Vol. V p. 18. Adams said, "with all certainty," that visitation with the parents should not increase. Tr. Vol. IV p. 235.

[16] The visit supervisor, Andrew George, stated that K.Q. had verbally expressed to him that she did not want to go on visits with Mother and Father. Despite these expressions, George thought Mother and Father should progress from supervised to monitored visits with K.Q. and R.Q.

[17] Father also testified at the hearing. He stated that he had "a lot of issues" with the foster mother and that he thought that "everything [was] pretty much [her] fault." Tr. Vol. VI p. 71.

[18] After the hearing concluded, the trial court issued its order approving DCS's proposed changes to the permanency plans. Mother and Father each petitioned the court to certify its order for interlocutory appeal, and DCS did not respond to either petition. The trial court certified its order, and Mother and Father asked this Court to accept jurisdiction over their appeal. DCS did not respond to the motion. The Court's motions panel granted the motion, and this interlocutory appeal ensues.

Discussion and Decision

[19] Mother and Father contend that the trial court's order approving the changes to the permanency plans from reunification to termination was clearly erroneous. Before we address their argument, we first must address DCS's argument that this appeal is "premature." Appellee's Br. p. 26.

[20] DCS claims that the changes to the permanency plans have not caused the parents actual harm. It relies on our decision in In re K.F. , 797 N.E.2d 310 (Ind. Ct. App. 2003), to support its position. In K.F. , the court issued an order approving DCS's proposed change to the permanency plan from reunification to termination. The K.F. parents did not petition for interlocutory appeal but rather appealed the court's order as a final judgment. We held, in part, that the change in a permanency plan from reunification to termination is not an appealable final judgment because parents "are not prejudiced by the permanency plan" because the change does not terminate parents' rights and parents "may challenge the propriety of terminating their parental rights and hold [DCS] to the stricter burden of proof required in such cases." Id. at 315. Despite the procedural differences in K.F. and the matter before us, we find DCS's argument persuasive. For the same reasons articulated in K.F. , we hold that an interlocutory appeal of a change in the permanency plan is generally premature. The change does not prejudice the parents because they still have a separate termination hearing, and the evidentiary burden on DCS to prove that termination is appropriate is higher than what DCS is required to prove in order to change the permanency plan from reunification to termination.

[21] DCS, however, did not respond to Mother's or Father's request for the trial court to certify its order for interlocutory appeal. Nor did DCS respond to Mother and Father's motion for this Court to accept jurisdiction of their appeal after the trial court certified its order. Instead, DCS raised its argument for the first time in its brief. Because we accepted jurisdiction over the appeal and the parties have fully briefed the issue, we address Mother's and Father's arguments. Mother and Father appealed separately, and, where possible, we have consolidated their arguments.

[22] Permanency plans are part of the CHINS case, and decisions in CHINS cases are reviewed for clear error. In re S.K. , 57 N.E.3d 878, 881-82 (Ind. Ct. App. 2016). Here, the parties agree that a change in the permanency plan should also be reviewed for clear error. Father's Br. p. 8; Mother's Br. p. 18; Appellee's Br. p. 27. We will neither reweigh the evidence nor judge the credibility of the witnesses. In re D.F. , 83 N.E.3d 789, 796 (Ind. Ct. App. 2017). Rather, we consider only the evidence that supports the court's determination and reasonable inference drawn therefrom. Id.

[23] The parents argue that the evidence is insufficient to support the trial court's order. They contend that the court's finding that they are only in partial compliance with services is clearly erroneous and unsupported by the record. Mother and Father are correct that FCM Taylor stated, "They are the most compliant people I've met. They go to everything that they are supposed to go to." Tr. Vol. V p. 248. But the full findings state:

Mother is partially in compliance with the plan as follows: Mother has been participating in services including home based case management and therapy. Mother has not made the necessary progress in therapy and home based case work to maintain a viable permanency plan of reunification. Father is partially in compliance with the plan as follows: Father has been participating in services including home based case management and therapy. Father has not made the necessary progress in services to maintain a viable permanency plan of reunification.

Appellants' App. Vol. III p. 23. Throughout the four-day permanency hearing, FCM Taylor and therapist Freeman testified multiple times that Mother and Father were attending their service appointments, but the parents were not making progress with their individual therapy. Namely, Mother and Father refused to accept responsibility for the injuries A.Q. sustained in January 2015, and they continued to blame others for their current situation. Father even testified that "everything is pretty much [foster mother's] fault." Tr. Vol. VI p. 71. The evidence is sufficient to support the trial court's finding that Mother and Father were not progressing with services, therapy, and home-based services to maintain permanency plans of reunification.

[24] The parents also contend that DCS did not provide reasonable services aimed at reunification. They argue that services provided to A.Q. were inadequate to support reunification because they had not seen her since March 2015 (Mother) and January 2016 (Father). DCS provided Mother and Father with individual therapy, couples therapy, home-based services, and supervised visits. A.Q. was given individual therapy to address her fears surrounding reunification. Again, the parents ignore the fact that they made no progress in therapy to address their actions, which is why the no-contact order was not lifted.

[25] Furthermore, the parents claim that DCS replaced therapist Freeman and visit supervisor George after each testified that they had no issue with Mother and Father progressing to monitored visits and reuniting with the children. They contend that this is proof that DCS did not provide the necessary services for reunification. We agree that, as an isolated incident, the replacement of service providers who recommend reunification would be alarming. However, when taken in the context of the case as a whole, we do not agree with the parents' position. At the time Freeman and George were replaced, the case had been ongoing for over two years, and Freeman himself testified that Mother and Father were not willing to take accountability for what happened to A.Q. in January 2015. Furthermore, DCS did not just replace Freeman and George; it also replaced therapist Adams who recommended "with all certainty" that Mother and Father not be given more visitation time. The evidence is sufficient to show that DCS was providing necessary services for reunification.

[26] Additionally, Father raises a separate, distinct argument: his constitutional rights were violated by keeping A.Q. from him and Mother. In support of his argument, Father cites to our holding in a termination-of-parental-rights case, Lang v. Starke County Office of Family and Children , 861 N.E.2d 366 (Ind. Ct. App. 2007), trans. denied . But in Lang , we stated, "A parent has a constitutional right to raise his or her children, but this right is not absolute and must be subordinated to the children's interests when the children's emotional and physical development is threatened." Id. at 371. Father contends that his due-process rights were violated and that he "did everything DCS and the Court asked him to. And yet, neither Parent was ever even offered an opportunity to see the child." Father's Br. p. 12. But Father was given a fair, multi-day hearing to address reunification with A.Q. During that hearing it was repeatedly stated that Father and Mother were unwilling to take any responsibility for A.Q.'s January 2015 injuries-the reason why the children were removed from the home. Father also contends that the trial court's no-contact order was not narrowly tailored because "Father was not accused of battery, yet he was given the same treatment as Mother who was charged and convicted of a crime." Id. Father fails to mention that the reason the trial court entered a no-contact order for both parents was A.Q.'s substantiated claim of sexual abuse by Father. Father would not discuss this claim with therapist Freeman other than to say that he did not do it and that A.Q. was coached into making that admission. Father has not convinced us that his constitutional rights were violated.

[27] Mother also makes a separate, distinct argument: the court's order was clearly erroneous because it did not include a concurrent plan for reunification. "Concurrent planning ... requires the identification of two (2) permanency plan goals and simultaneous reasonable efforts toward both goals with knowledge of all participants." Ind. Code § 31-9-2-22.1(b). Mother contends that DCS should have proposed a concurrent permanency plan that included reunification because she and Father were "active" participants in services and progressed in services. Mother's Br. p. 27. She also claims that the concurrent plan was in the best interests of the children given "the length of time it would take to proceed through a termination proceeding[.]" Id. Mother is correct that Indiana Code section 31-9-2-22.1 permits a trial court to adopt a concurrent permanency plan, but the statute does not mandate that DCS propose a concurrent permanency plan or that the court adopt a concurrent permanency plan. Additionally, the changes to the permanency plans do not terminate reunification services for Mother and Father. Regardless of the time it takes for the termination proceeding to be completed, Mother and Father are able to participate in services and make the necessary progress to regain custody of their children. See Appellants' App. Vol. III pp. 22-25 (the trial court's order approving the permanency changes does not order DCS to stop reunification services); Tr. Vol. V p. 146 (FMC Taylor testifying that changes to the permanency plans would not stop DCS from offering the parents or children services aimed at reunification). Furthermore, when the court issued its order in November 2017, this case had been ongoing for almost three years. During that time, Mother and Father had not made any progress in their individual therapy. Accordingly, the court's decision to adopt a singular plan for permanency was not clearly erroneous.

[28] In summary, there was sufficient evidence presented over the four-day permanency hearing to support the trial court's order approving the proposed changes to the permanency plans from reunification to termination. The trial court's order was not clearly erroneous. Furthermore, we reiterate that a change in the permanency plan from reunification to termination is generally not suitable for interlocutory review, particularly where, as here, DCS and the court continue reunification services, because parents cannot show actual harm from the change; they can only show the potential for future harm.

[29] Affirmed.

Pyle, J., and Barnes, Sr. J., concur.

      The main reason for the lengthy permanency hearing was that six parties (DCS, Mother, Father, the foster mother, the Court Appointed Special Advocate, and the maternal grandmother), all represented by counsel, participated in the hearing.