In the Matter of: J.B., A Child in Need of Services: S.M. (Mother) v. The Indiana Department of Child Services (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 07 2016, 8:42 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Daniel Dixon Gregory F. Zoeller
Debra S. Andry Attorney General of Indiana
Lawrence County Public Defender
Agency Robert J. Henke
Bedford, Indiana Abigail R. Recker
Deputy Attorneys General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of: J.B., A Child in September 7, 2016
Need of Services: Court of Appeals Case No.
47A01-1604-JC-765
S.M. (Mother), Appeal from the Lawrence Circuit
Appellant-Respondent, Court
The Honorable Andrea K.
v. McCord, Judge
The Honorable John M. Plummer,
The Indiana Department of III, Referee
Child Services, Trial Court Cause No.
47C01-1507-JC-289
Appellee-Petitioner.

Bradford, Judge.

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 Case Summary
[1] On March 9, 2016, J.B. (“Child”) was determined to be a Child in Need of

Services (“CHINS”) after Appellee-Petitioner, the Department of Child

Services (“DCS”), received reports that the Child was the victim of abuse and

neglect. Appellant-Respondent, S.M. (“Mother”), appeals from this

determination, arguing that the juvenile court erred in denying her motion to

dismiss the CHINS proceedings. Specifically, Mother claims that the CHINS

proceedings should have been dismissed, without prejudice, because the

juvenile court failed to conduct a fact-finding hearing within the statutorily

allotted time frame. Concluding that the juvenile court did not err in denying

Mother’s motion to dismiss, we affirm the judgment of the juvenile court.

Facts and Procedural History
[2] DCS became involved with Mother, J.M. (“Step-Father”), and the Child after

receiving a report that Mother and Step-Father neglected and physically abused

the Child. The Child was born on February 28, 2006. The Child’s biological

father reportedly died in March of 2015.

[3] On July 29, 2015, DCS filed a petition alleging that the Child was a CHINS.

DCS attached a number of photographs to its petition which documented

bruising suffered by the Child as a result of the alleged abuse. Also on July 29,

2015, the trial court conducted an initial hearing after which it formally

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 removed the Child from Mother’s care and placed the Child with her maternal

grandmother.

[4] After a number of continuances, the parties agreed that the fact-finding hearing

would be held on December 18, 2015. One day before the scheduled fact-

finding hearing, on December 17, 2015, Mother filed a motion to dismiss the

CHINS proceedings, without prejudice. On December 18, 2015, Step-Father

moved for a continuance of the fact-finding hearing. In making these motions,

both Mother and Step-Father alleged that DCS had failed to respond to certain

discovery requests. The trial court conducted a hearing on Mother’s and Step-

Father’s motions, after which it denied Mother’s motion to dismiss and granted

Step-Father’s request for a continuance. The trial court also set a deadline by

which DCS was to comply with all remaining discovery requests and scheduled

the matter for a fact-finding hearing on January 8, 2016.

[5] The trial court conducted the fact-finding hearing on January 8, 2016, after

which it adjudicated the Child to be a CHINS. The trial court subsequently

held a dispositional hearing after which it ordered Mother and Step-Father to

participate in certain services. This appeal follows.

Discussion and Decision
[6] On appeal, Mother argues that the juvenile court erred in denying her motion to

dismiss the underlying CHINS proceedings. Specifically, Mother claims that

the CHINS proceedings should have been dismissed, without prejudice,

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 because the juvenile court failed to conduct a fact-finding hearing within the

time allotted in Indiana Code section 31-34-11-1. For its part, DCS argues that

the juvenile court did not err in denying Mother’s motion to dismiss.

[7] Indiana Code section 31-34-11-1 provides in relevant part:

(a) Except as provided in subsection (b), unless the allegations of
a petition have been admitted, the juvenile court shall complete a
fact[-]finding hearing not more than sixty (60) days after a
petition alleging that a child is a child in need of services is filed
in accordance with [Indiana Code Chapter] 31-34-9.

(b) The juvenile court may extend the time to complete a fact[-
]finding hearing, as described in subsection (a), for an additional
sixty (60) days if all parties in the action consent to the additional
time.
****
(d) If the fact[-]finding hearing is not held within the time set
forth in subsection (a) or (b), upon a motion with the court, the
court shall dismiss the case without prejudice.

(Emphasis added).

[8] In Parmeter v. Cass County Department of Child Services, 878 N.E.2d 444, 448 (Ind.

Ct. App. 2007), we acknowledged that the use of the term “‘shall’ generally

connotes a mandatory as opposed to a discretionary import.” However, we

observed that the term “‘shall’ may be construed as directory instead of

mandatory to prevent the defeat of the legislative intent.” Id. (internal

quotation omitted). “Thus, the term ‘shall’ is directory when the statute fails to

specify adverse consequences, the provision does not go to the essence of the

statutory purpose, and a mandatory construction would thwart the legislative
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 purpose.” Id. In considering whether the term “shall” connoted a mandatory

or directory import, we noted that Indiana Code section 31-34-11-1 used the

term “shall” when setting a deadline for holding a fact-finding hearing, did not

specify any adverse consequence for failing to comply with the time limit, and

expressly provides for the extension of the time limit when all parties consent.

Id. We also noted that “holding the hearings within the statutory time limits

does not go to the purpose of the CHINS statutes, which were enacted in part to

‘assist[ ] parents to fulfill their parental obligations’ and to ‘remove children

from families only when it is the child’s best interest....’” Id. (quoting Ind. Code

§ 31-10-2-1(4), (6)). We further noted that “a mandatory construction would

thwart those legislative purposes by requiring dismissal of CHINS cases where

continuances of the fact-finding or dispositional hearings are needed for

legitimate reasons[.]” Id. For these reasons, we concluded that the term

“shall,” as used in Indiana Code Section Indiana Code section 31-34-11-1, is

directory and not mandatory. Id. In reaching this conclusion we stated that

“[i]f we were to hold otherwise, CHINS cases would have to be dismissed

where a continuance beyond the statutory time frame was necessary and

legitimate, an absurd and unjust result.” Id. One possible absurd and unjust

result could foreseeably include putting children at considerable risk if the

allegations alleged in the CHINS petition, such as the ones in this case, are

serious and meritorious.

[9] In the instant matter, the parties, including Mother, agreed that the fact-finding

hearing would be conducted on December 18, 2015, or 142 days after DCS filed

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 the underlying CHINS petition. On December 17, 2015, one day before the

scheduled fact-finding hearing, Mother filed a motion to dismiss the CHINS

action without prejudice. In this motion, Mother claimed that (1) DCS had

failed to respond to certain discovery requests; (2) as a result of DCS’s failure,

her counsel could not adequately prepare for the fact-finding hearing; and (3)

any further continuance of the fact-finding would bring the matter outside the

time limits set forth in Indiana Code section 31-34-11-1. Mother’s motion

acknowledged that the agreed upon date of the scheduled fact-finding hearing

was 142 days after the date that the underlying CHINS petition was filed. It did

not, however, explain why a further delay outside of the timeframe set forth in

Indiana Code section 31-34-11-1 would warrant dismissal of the CHINS

proceedings when the agreed upon date of December 18, 2015, did not.

[10] In considering Mother’s motion, the trial court indicated that it seemed that in

seeking dismissal of the underlying CHINS proceedings, Mother was trying to

“un-waive a waiver.” Tr. p. 41. The trial court went on to explain that it

believed that Mother “waived [the] remedy of dismissal” by agreeing to a date

for the fact-finding hearing that was not within the time frame set forth in

Indiana Code section 31-34-11-1 and that she was “now … asking to go back

and say, Okay, [I’m] not waiving that now.” Tr. p. 41. In finding that Mother

could not “un-waive” her waiver, the trial court stated “[b]ut once it’s waived,

it’s waived.” Tr. p. 41. The trial court also noted that any issues with discovery

should have been addressed pursuant to Indiana Trial Rule 37, and, given the

serious nature of the allegations of abuse, found that continued removal from

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 Mother’s care pending resolution of the CHINS proceedings was in the Child’s

best interest. The trial court denied Mother’s motion to dismiss, set a deadline

by which DCS was required to comply with any remaining discovery requests,

and scheduled the fact-finding hearing for January 8, 2016, an additional delay

of only three weeks.

[11] On appeal, Mother argues that she suffered harm and her parental rights were

put at risk as a result of the trial court’s denial of her motion to dismiss.

Specifically, Mother claims that “the trial court failed to properly balance the

interests of the State with [her] interests.” Appellant’s Br. p. 13. Mother asserts

that the trial court’s focus on the potential harm to the Child if the CHINS

proceedings were dismissed was misplaced because DCS could have

immediately re-filed the CHINS petition and requested immediate detention of

the Child. Mother also asserts that the additional delay in conducting the fact-

finding hearing put her at risk of having a reduced amount of time to complete

any ordered services before DCS could seek the termination of her parental

rights.

[12] Upon review, we conclude that Mother has failed to demonstrate both that the

trial court erred in considering the Child’s best interests when ruling on

Mother’s motion and that she was prejudiced by the additional three-week

delay in the CHINS proceedings. In fact, we note that if the trial court had

granted Mother’s motion to dismiss, given the serious nature of the abuse

allegations, DCS would undoubtedly have immediately refiled the CHINS

proceedings, leading to an even longer delay in services being offered to the

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 parties. As such, any future reunification of the Child with her Mother would

have likewise been delayed as such reunification would not have occurred prior

to Mother completing certain services. In addition, Mother has pointed to

nothing in the record that would suggest that DCS would not take the

additional three-week delay into consideration before potentially filing any

subsequent motions that might affect Mother’s parental rights.

[13] Mother herself agreed to waive the time limits set forth in Indiana Code section

31-34-11-1 when she agreed to the December 18, 2015 fact-finding hearing date.

The additional three-week delay before the hearing was ultimately conducted

seems rather inconsequential when compared to the likely much longer delay

which would have occurred before a fact-finding hearing could be conducted if

the matter was dismissed and then re-filed. As such, we conclude that requiring

the trial court to have granted Mother’s motion to dismiss would have led to an

absurd and unjust result. The trial court, therefore, did not err in denying

Mother’s motion to dismiss.

[14] The judgment of the trial court is affirmed.

Pyle, J., and Altice, J., concur.

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