In the Matter of J.S. (Child in Need of Services) K.S. (Mother) v. The Indiana Department of Child Services

FILED
Jun 18 2019, 8:13 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Rebecca M. Eimerman Curtis T. Hill, Jr.
Zionsville, Indiana Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of J.S. (Child in June 18, 2019
Need of Services) Court of Appeals Case No.
18A-JC-2816
Appeal from the Hamilton Circuit
K.S. (Mother), Court
Appellant-Respondent, The Honorable Paul A. Felix,
Judge
v.
The Honorable Todd L. Ruetz,
Magistrate
The Indiana Department of
Trial Court Cause No.
Child Services,
29C01-1709-JC-1220
Appellee-Petitioner.

Bailey, Judge.

Court of Appeals of Indiana | Opinion 18A-JC-2816 | June 18, 2019 Page 1 of 8
 Case Summary
[1] K.S. (“Mother”) had three children (“Children”), all of whom were adjudicated

Children in Need of Services (“CHINS”). Post-adjudication, during

permanency proceedings, Mother unsuccessfully moved to dismiss the CHINS

case concerning her eldest child, J.S. On January 4, 2019, this Court granted

Mother permission to bring an interlocutory appeal to challenge the denial of

that motion. She presents the sole issue of whether she is entitled to dismissal

pursuant to Indiana Code Section 31-34-11-1(d), which provides for dismissal of

a CHINS case if a factfinding hearing is not completed within 60 days (or 120

days with party consent) after the filing of a CHINS petition. We affirm.

Facts and Procedural History
[2] On September 25, 2017, the Hamilton County Department of Child Services

(“the DCS”) filed a CHINS petition regarding Children. The DCS alleged that

J.S.’s sibling had sustained physical injuries consistent with physical abuse or

non-accidental trauma, specifically, rib and tibia fractures, subconjunctival

hemorrhages, and bruising across the body. Children were removed from

Mother’s care and she was provided court-appointed counsel.

[3] On November 13, 2017, the DCS and Mother, by counsel, agreed to a setting of

the factfinding hearing for January 18, 2018. Mother was appointed new

counsel and, on January 17, 2018, she filed a motion to continue the factfinding

hearing. Without providing specific terms, Mother informed the court that she

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 and the DCS had reached an agreement. She requested a non-contested

factfinding hearing to be conducted thirty to forty-five days in the future. The

CHINS court conducted the factfinding hearing on February 26, 2018. On

March 1, 2018, the court adjudicated Children as CHINS and entered

dispositional orders.

[4] Eight months later, on October 26, 2018, Mother filed a motion to dismiss the

CHINS case as to J.S. She argued that dismissal was mandatory because the

non-contested CHINS factfinding hearing was conducted outside the 120-day

window of Indiana Code Section 31-34-11-1. The DCS filed an objection to the

motion to dismiss. On October 29, 2018, the juvenile court conducted a

permanency hearing, preceded by argument regarding the motion to dismiss.

Considering Mother’s motion to have been made “after the fact,” Tr. at 8, the

juvenile court denied the motion to dismiss. Mother now appeals.

Discussion and Decision
[5] 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 factfinding 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 IC 31-34-9.

(b) The juvenile court may extend the time to complete a
factfinding hearing, as described in subsection (a), for an

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 additional sixty (60) days if all parties in the action consent to
the additional time.

(c) * * *

(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.)

[6] Mother contends – because the factfinding hearing regarding J.S. was

conducted more than 120-days after the CHINS petition was filed – she is

entitled to dismissal of the CHINS case at any stage of the proceedings. In

essence, Mother claims that the juvenile court made an adjudication absent

authority and thus its order is void and subject to attack at any time. The DCS

responds that Mother does not have an absolute, post-adjudication right to

dismissal. An issue of statutory construction presents a question of law, one

which we review de novo, owing no deference to the juvenile court’s statutory

interpretation. Matter of J.R., 98 N.E.3d 652, 654 (Ind. Ct. App. 2018). In

interpreting a statute, our goal is to determine and give effect to the intent of our

legislature. State v. Int’l Bus. Mach. Corp., 964 N.E.2d 206, 209 (Ind. 2012). We

“consider the objects and purposes of the statute as well as the effects and

repercussions of” our interpretation. Bushong v. Williamson, 790 N.E.2d 467,

471 (Ind. 2003).

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[7] This Court has previously had occasion to decide whether dismissal is

appropriate under Indiana Code Section 31-34-11-1(d), in the context of

motions to dismiss made prior to the completion of factfinding and the CHINS

adjudication. In Matter of J.R., the parents argued that “the juvenile court

lacked authority to enter a CHINS finding due to the failure to complete

factfinding within sixty days” and this Court agreed. Id. Concluding that the

timeframe of Indiana Code Section 31-34-11-1 was mandatory, we stated:

“there is no longer any reason to believe that the General Assembly intends [the

statute] to mean anything other than what its clear language indicates, i.e., that

a factfinding hearing shall be completed within” the statutorily-mandated

timeframe and failure to do so “is grounds for dismissal.” Id. at 655 (emphasis

in original). The Court also observed 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.

[8] Subsequently, in Matter of T.T., 110 N.E.3d 441, 443 (Ind. Ct. App. 2018), a

panel of this Court considered and rejected the DCS’s arguments that Indiana

Code Section 31-34-11-1 had not created “a hard and fast deadline” and that a

parent had waived her objection by agreeing to the continuance:

Contrary to DCS’s argument, we believe that the General
Assembly clearly intends for the timeframe set forth in Indiana
Code section 31-34-11-1 to be a certain deadline. Further, while
subsection (a) provides that the parties may waive the initial 60-
day deadline by agreeing to a continuance, subsection (b) does
not include any such provision. This lack of allowance for an
additional extension of time indicates that the General Assembly

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 intends to require that a factfinding hearing must 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.

[9] We agree with prior decisions of this Court that the language of Indiana Code

Section 31-34-11-1 mandates a fixed deadline for conducting a factfinding

hearing, and it provides an enforcement mechanism, that of dismissal.1 But

those decisions involved objections prior to CHINS adjudications and our

recognition of a 120-day deadline in which to conduct a factfinding hearing

does not end our inquiry here. We look to whether legislative purposes would

be served by allowing a post-adjudication motion to dismiss.

[10] “[T]he purpose of a CHINS adjudication is to protect children, not punish

parents.” N.L. v. Ind. Dept of Child Servs, 919 N.E.2d 102, 106 (Ind. 2010).

When legislative intent has been ascertained, “it will prevail over the literal

import and the strict letter of the statute.” Int’l Bus. Mach. Corp., 964 N.E.2d at

209. Here, the protection of a child is of paramount importance.

1
The DCS suggests that a juvenile court retains discretion in some circumstances to schedule a factfinding
hearing outside the 120-day timeframe, citing M.M. v. Indiana Dept. of Child Servs., 118 N.E.3d 70 (Ind. Ct.
App. 2019). In a footnote in M.M., the Court recognized that “CHINS courts are restricted in the ability to
continue fact-finding hearings” but also observed “it was within the trial court’s authority, as explained in
this opinion, to continue the fact-finding hearing so that it could consider Father’s request for custody
modification along with the fact finding.” Id. at 77, n.2. Although a factfinding hearing can be continued
beyond 60 days, with the consent of all parties, Indiana Code Section 31-34-11-1 does not incorporate an
exception to the 120-day requirement and a juvenile court is not vested with discretion in that regard.

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[11] Mother seeks a procedural remedy regardless of the merits of the DCS claim

that J.S. needed services unlikely to be provided without the coercive

intervention of the court.2 Mother’s unyielding construction of the language of

subsection (d) – that a dismissal may be obtained post-adjudication – would, as

a practical matter, provide a substitute for an appeal. Mother did not merely

acquiesce to a setting of the factfinding hearing outside the statutory

framework, as in Matter of T.T. Rather, Mother acquiesced in the finding that

J.S. is a CHINS, she did not appeal that adjudication, and she now seeks to

collaterally attack it. The statute at issue provides a mechanism to obtain a

prompt adjudication of a child’s status. We readily reject the contention that

the timeliness requirement of Indiana Code Section 31-34-11-1 provides

grounds for setting aside a CHINS adjudication once it has been entered for the

benefit and protection of a child.

[12] As a final matter, the DCS urges that “the timeframes in Indiana Code section

31-34-11-1 should be construed to be in conflict with the Supreme Court’s Trial

Rule 53.5 ‘good cause’ provision.” Appellee’s Brief at 20. Generally, when a

statute conflicts with a procedural rule enacted by our supreme court, the

statute is null and void. Indiana Univ. Health S. Ind. Physicians, Inc. v. Noel, 114

2
Indiana Code Section 31-34-1-1 provides that a child is a child in need of services if, before the child
becomes eighteen years of age, the child’s physical or mental condition is seriously impaired or endangered
as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply necessary
food, clothing, shelter, medical care, education, or supervision, and the child needs care, treatment, or
rehabilitation that the child is not receiving and is unlikely to be provided or accepted without the coercive
intervention of the court.

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 N.E.3d 479, 485 (Ind. Ct. App. 2018). Incompatibility exists where both the

rule and the statute could not apply in a given situation. Id.

[13] Trial Rule 53.5, pertaining to continuances, provides in relevant part:

Upon motion, trial may be postponed or continued in the
discretion of the court, and shall be allowed upon a showing of
good cause established by affidavit or other evidence.

[14] The foregoing rule specifies the grounds upon which a continuance may be

obtained, that is, good cause established by affidavit or other evidence. In some

circumstances, our Legislature will set the parameters for application of those

grounds, as it has done here. There is no conflict to support a declaration that

the statutory provision at issue is null and void.

Conclusion
[15] The dismissal sanction of Indiana Code Section 31-34-11-1(d) for failure to

timely conduct a CHINS factfinding hearing is not a mechanism to collaterally

attack a CHINS adjudication. The juvenile court did not err in denying

Mother’s motion to dismiss.

[16] Affirmed.

Riley, J., and Pyle, J., concur.

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