In the Matter of M.S. A Child in Need of Services: A.C. (Mother) v. Indiana Department of Child Services

FILED
May 15 2019, 8:56 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Zachary J. Stock Curtis T. Hill, Jr.
Zachary J. Stock, Attorney at Law, P.C. Attorney General of Indiana
Indianapolis, Indiana Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of M.S.; May 15, 2019
A Child in Need of Services: Court of Appeals Case No.
A.C. (Mother), 18A-JC-2843
Appellant-Respondent, Appeal from the Hendricks
Superior Court
v. The Honorable Karen M. Love,
Judge
Indiana Department of Child Trial Court Cause No.
Services, 32D03-1711-JC-186
Appellee-Petitioner.

Pyle, Judge.

Statement of the Case
[1] A.C. (“Mother”) appeals the trial court’s order determining that her daughter,

M.S. (“M.S.”) was a Child in Need of Services (“CHINS”) based on a petition

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 filed by the Department of Child Services (“DCS”). Mother specifically argues

that the trial court erred in denying her motion to dismiss the CHINS case.

Mother’s motion was made on the ground that the factfinding hearing was not

completed within the timeframe statutorily mandated by INDIANA CODE § 31-

34-11-1. Concluding that Mother is correct that the hearing was not timely

completed, we reverse the trial court’s judgment and remand with instructions

to dismiss the CHINS case without prejudice.

[2] We reverse and remand with instructions.

Issue
Whether the trial court erred in denying Mother’s motion to
dismiss the CHINS case.

Facts
[3] M.S. was born in November 2011. In November 2017, DCS filed a petition

alleging that M.S. was a CHINS. At the beginning of the December 13, 2017

CHINS factfinding hearing, the trial court pointed out that the hearing had to

be concluded “within 120 days of the date of filing.” (Tr. Vol. 2 at 25). DCS

asked the trial court to continue the hearing, and the trial court pointed out that

the hearing had to be completed by March 15. The trial court rescheduled the

hearing for February 23, 2018.

[4] In January 2018, Mother filed a request for production of documents from the

Danville Police Department. The police department responded to Mother’s

motion with a motion to quash because the documents related to the

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 investigation that gave rise to the CHINS petition. The trial court held a hearing

on the motions on February 16 and ordered the police department to provide

Mother with the requested documents. Also at the hearing, Mother requested a

continuance of the February 23 factfinding hearing and asked the parties to

waive the one-hundred and twenty (120) day statutory period in which to

complete the CHINS hearing that had started in December 2017. The trial

court granted the continuance.

[5] The factfinding hearing was completed in April 2018, and the trial court

adjudicated M.S. to be a CHINS in October 2018. At the October 2018

dispositional hearing, Mother asked the trial court to dismiss the CHINS case

because the factfinding hearing had not been held within one-hundred and

twenty days of the filing of the CHINS petition. In support of her request,

Mother cited Matter of T.T., 110 N.E.3d 441, 443 (Ind. Ct. App. 2018), which

had been decided that month and held that the statutory timeframe set forth in

INDIANA CODE § 31-34-11-1 was a “certain deadline.” The trial court denied

the motion, and Mother now appeals that denial.

Decision
[6] Mother argues that the trial court erred in denying her motion to dismiss the

CHINS case pursuant to INDIANA CODE § 31-34-11-1, which provides, in

relevant part as follows:

(a) Except as provided in subsection (b), unless the allegations
of a petition have been admitted, the juvenile court shall
complete a factfinding hearing not more than sixty (60) days after

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 a petition alleging that a child is a child in need of services is filed
in accordance with Ind. Code § 31-34-9.

(b) The juvenile court may extend the time to complete a
factfinding 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 factfinding 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). In Matter of J.R., 98 N.E.3d 652, 655 (Ind. Ct. App. 2018),

we interpreted this statute and concluded that there was “no longer any reason

to believe that the General Assembly intend[ed] [the statute] to mean anything

other than what its clear language indicate[d], i.e., that a factfinding hearing

shall be completed within” the statutorily mandated timeframe and failure to do

so was “grounds for dismissal.” (Emphasis added). We further concluded that

“if we were to allow the deadline to be ignored here, trial courts could

habitually set these matters outside the time frame and there would be no

consequence whatsoever.” Id.

[7] DCS argues, however, that a dismissal was not necessary in this case because

Mother had requested the February 23 continuance and had asked the parties to

waive the statutory timeframe. We addressed this argument in Matter of T.T.,

110 N.E.3d at 443, the case cited by Mother in her motion to dismiss. Therein,

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 we explained that although subsection (a) provided that the parties could waive

the initial sixty (60) day deadline by agreeing to a continuance, subsection (b)

did not include any such provision. Id. We further explained as follows:

This lack of allowance for an additional extension of time
indicate[d] that the General Assembly intend[ed] to require that a
factfinding hearing [had to] be completed within 120 days of the
filing of a CHINS petition regardless of any act or agreements of
the parties. To allow the parties to agree to dates beyond the
maximum 120-day limit would thwart the legislative purpose of
timely rehabilitation and reunification of families that are subject
to CHINS proceedings.

Id. We therefore reversed the trial court’s judgment and remanded with

instructions to dismiss the CHINS case without prejudice. We also pointed out

that, as explained in Matter of J.R., 98 N.E.3d at 655, should DCS refile the

CHINS petition, it “would not be able to rely solely on the evidence that was

admitted at the original CHINS factfinding; it would have to also submit new

evidence” regarding the current conditions.

[8] Here, as in Matter of T.T., we reverse the trial court’s denial of Mother’s motion

to dismiss and remand to the trial court with instructions to dismiss the CHINS

case without prejudice.1 In addition, if DCS refiles the petition, it will also have

1
We note that another panel of this Court stated in a footnote in A.M. v. Indiana Dep’t of Child Servs., 118
N.E.3d 70, 77 n.2 (Ind. Ct. App. 2019) that in certain circumstances, it is within the trial court’s authority to
continue the factfinding hearing beyond the statutory limit of 120 days. However, the statute includes no
such exception, and we decline to find one. The legislature could have included such an exception had it
chosen to do so.

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[9] to submit new evidence regarding current conditions.

[10] Reversed and remanded with instructions.

Riley, J., and Bailey, J., concur.

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