In the Matter of the Involuntary Termination of the Parent-Child Relationship of J.S. and Jo.C. (Minor Children) and J.C. (Father) 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
Jul 15 2019, 7:05 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan E. Shipley Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Frances H. Barrow
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Involuntary July 15, 2019
Termination of the Parent-Child Court of Appeals Case No.
Relationship of J.S. and Jo.C. 19A-JT-258
(Minor Children) Appeal from the Marion Superior
and Court
The Honorable Marilyn A. Moores,
J.C. (Father), Judge
Appellant-Respondent, The Honorable Scott B. Stowers,
Magistrate
v.
Trial Court Cause Nos.
49D09-1805-JT-588
The Indiana Department of 49D09-1805-JT-589
Child Services,
Appellee-Petitioner.

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-258 | July 15, 2019 Page 1 of 18
 Case Summary
[1] J.S. and Jo.C. (“Children”), born to J.C. (“Father”) and B.S. (“Mother”)

(collectively, “Parents”), were adjudicated Children in Need of Services

(“CHINS”) because of Father’s domestic violence toward Mother. The Marion

County Department of Child Services (“the DCS”) petitioned to terminate

Parents’ parental rights; the trial court denied the petition as to Mother and

granted the petition as to Father.1 Father now appeals. He presents a

consolidated and restated issue: whether the order must be reversed due to

deprivation of procedural due process and substantive clear error. We reverse.

Facts and Procedural History
[2] Children were removed from Parents’ custody on September 23, 2015, after

Father struck and choked Mother. Children were adjudicated CHINS on

December 11, 2015, and Parents were ordered to participate in various services.

Over time, Mother was substantially compliant with services and Father was

substantially non-compliant. In 2017, after Parents separated, Father reached

into Mother’s vehicle and struck her in her face. Mother cooperated with a

criminal prosecution of Father and he pled guilty to battery. He was

subsequently convicted of three counts of Invasion of Privacy for violating no-

contact and protective orders issued for Mother’s benefit.

1
Mother is not an active party in this appeal.

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[3] On May 15, 2018, the DCS petitioned to terminate Parents’ parental rights. At

a pretrial conference held on July 23, 2018, attorneys for the DCS, Mother, and

Father agreed to a hearing setting of December 12, 2018 and January 3, 2019

(each half days). On October 17, 2018, the DCS filed a Motion to Advance

Trial Date (to November 11, 2018 or earlier), to comply with Indiana Code

Section 31-35-2-6(a)(2), which requires that a termination hearing be completed

within 180 days after the termination petition is filed. On October 30, 2018, the

trial court denied the Motion to Advance Trial Date, noting “the parties

acquiesced to these trial dates.” (App. Vol. II, pg. 68.)

[4] On November 20, 2018, Father moved to dismiss the DCS petition, on grounds

of statutory noncompliance. The motion was denied. On December 12, 2018

and January 3, 2019, the trial court conducted an evidentiary hearing. Mother

testified that she had obtained employment, participated in visitation, and

cooperated with law enforcement and a domestic violence advocate to address

Father’s acts of physical violence and property destruction. She had completed

two therapeutic courses for victims of domestic violence. Father testified that

he had not participated in services as ordered but he suggested that his

placement in work release hindered his completion. The Guardian ad Litem

(“GAL”) and a DCS caseworker, concerned that the removal had been lengthy

and Children needed stability, recommended termination of the parental rights

of both parents.

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[5] On January 24, 2019, the trial court issued an order terminating the relationship

between Father and Children and denying the termination petition as to

Mother. In part, the court concluded:

Due to the progress made by [Mother], the court cannot find by
clear and convincing evidence at this time that the conditions
that resulted in removal and continued placement outside of the
home will not be remedied by Mother.

There is a reasonable probability that the conditions that resulted
in the children’s removal and continued placement outside of the
home will not be remedied by their father.

Continuation of the parent-child relationship between [Father]
and the children poses a threat to the children’s well-being in that
it would serve as a barrier for them obtaining permanency when
their father is unwilling or unable to offer permanency and [to]
parent.

(Appealed Order at 4.) Father now appeals.

Discussion and Decision
Timeliness of TPR Hearing
[6] As an initial matter, Father argues that he was entitled to dismissal of the DCS

petition for termination because of non-compliance with Indiana Code Section

31-35-2-6, which provides in relevant part:

(a) Whenever a hearing is requested under this chapter, the court
shall:

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 (1) Commence a hearing on the petition not more than ninety
(90) days after a petition is filed under this chapter; and

(2) Complete a hearing on the petition not more than one
hundred eighty (180) days after a petition is filed under this
chapter.

(b) If a hearing is not held within the time set forth in subsection
(a), upon filing a motion with the court by a party, the court
shall dismiss the petition to terminate the parent-child
relationship without prejudice.

[7] The foregoing statute provides a “specific enforcement mechanism” for

noncompliance with the timelines. Matter of N.C., 83 N.E.3d 1265, 1268 (Ind.

Ct. App. 2017). Although Father filed a motion to obtain dismissal, the trial

court denied the motion because all parties had agreed to a hearing setting later

than November 11, 2018. On appeal, the parties dispute whether the 180-day

timeline is a fixed deadline or is subject to waiver. “The interpretation of a

statute is a question of law, which this Court reviews de novo.” Id. at 1267.

The “primary goal is to determine and effectuate the legislative intent” and this

Court will “give words and phrases their plain and ordinary meaning.” Id.

[8] In Matter of N.C., a father whose parental rights had been terminated argued on

appeal that he was entitled to dismissal of the termination petition,

notwithstanding his failure to file a written motion to dismiss and his agreement

to a hearing setting outside the statutory timeline. A panel of this Court

concluded that the father could be afforded no relief on appeal, as he had failed

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 to challenge the setting of the hearing. 83 N.E.3d at 1267. Nor could the DCS

be afforded the declaratory relief it sought. Id. at 1268.

[9] Notwithstanding waiver on the father’s part, the DCS had “ask[ed] that we

determine whether the word ‘shall,’ preceding ‘dismiss’ in subsection (b) of

Indiana Code Section 31-35-2-6, is ‘directory’ or ‘mandatory.’” Id. We

declined to review an issue not properly preserved for review, explaining:

“disposition of this case does not rest upon whether the word ‘shall’ in Indiana

Code Section 31-35-2-6 is mandatory or directory.” Id. at 1268.

[10] In so doing, we acknowledged that Parmeter v. Cass Cty. Dep’t of Child Servs., 878

N.E.2d 444 (Ind. Ct. App. 2007) [now superseded by statute] had construed

“shall” in a CHINS statute to be “directory” and we observed that Parmeter

involved a separate, although interlocking, statutory scheme. See Matter of N.C.,

83 N.E.3d at 1268. The N.C. Court further observed:

The objective of CHINS statutes is assisting in the fulfillment of
parental obligations, see Parmeter, 878 N.E.2d at 448, while
termination statutes provide a framework for ending those
parental obligations. Finally, and critically, the statutes
examined in Parmeter did not include a specific enforcement
mechanism for non-compliance, as does subsection (b) of Indiana
Code Section 31-35-2-6.

The DCS acknowledges the enactment of subsection (b), but
points out that dismissal is to be ‘without prejudice,’ and thus
many dismissed cases are likely to be re-filed. The DCS asserts
that this would ‘be simply a waste of resources, time, and effort –
resulting in absurdity, hardship, or injustice and public
inconvenience.’ Appellee’s Brief at 16. It is not within the

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 province of this Court to construe a statute simply to avoid
repetition of filings. We defer to our Legislature, the entity best
suited to balancing competing interests and allocating limited
judicial resources while giving due regard to parental rights,
which are of constitutional dimension.

Matter of N.C., 83 N.E.3d at 1268.

[11] The circumstances here do not fit squarely within the guidance of Matter of N.C.

There, the father first challenged the untimely hearing date by making an oral

motion for dismissal at the outset of the hearing. See id. at 1267. Here, there

was neither sustained acquiescence nor the failure to file a written motion. The

DCS filed a written motion to advance the hearing date and Father did not

object to the requested advancement. After the trial court denied the DCS

motion, but before the termination hearing was conducted, Father filed a

written motion to dismiss.

[12] Father argues that he did not waive – and indeed could not have waived – his

right to a timely hearing. He asks that we look beyond Matter of N.C. and

consider recent decisions of this Court examining deadlines in CHINS statutes

and finding them to be mandatory. See e.g., In Matter of J.R., 98 N.E.3d 652

(Ind. Ct. App. 2018); In re T.T., 110 N.E.3d 441 (Ind. Ct. App. 2018). The

DCS responds that Matter of N.C. is controlling, Father waived his right to a

hearing within 180 days and, regardless of mandatory CHINS deadlines, there

are “different interests at stake in CHINS and termination proceedings.”

Appellee’s Brief at 17. According to the DCS:

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 The focus of making quick determinations in CHINS cases to
avoid unnecessary or prolonged state intervention is not the same
as in a termination case. When DCS files a termination case, this
generally arises from an ongoing underlying CHINS case.
Because state intervention is ongoing in the underlying CHINS
case when DCS files the termination case, the same impetus to
resolve quickly a termination case is not the same.

Id. at 18. Although CHINS and termination proceedings invoke separate

statutes, they are interlocking. Matter of N.C., 83 N.E.3d at 1268. These

statutory schemes share common goals of promoting the best interests of the

children and precluding unwarranted state intrusion into the family realm. As

such, our Legislature has chosen to fix deadlines for hearings in both types of

proceedings. I.C. §§ 31-34-11-1, 31-35-2-6. And – post Parmeter, the opinion

discussed in Matter of N.C. – the Legislature has enacted a specific enforcement

mechanism for non-compliance with CHINS deadlines.

[13] 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” as mandated by Indiana Code Section 31-34-11-1, and this Court agreed.

98 N.E.3d at 654. The Court observed that, after Parmeter was decided, an

ambiguity identified by Parmeter was cured with the legislative addition of an

adverse consequence – dismissal – for failing to complete a factfinding hearing

within sixty days. Id. at 655. Concluding that the addition of the dismissal

subsection made clear that the timeframe 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

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 factfinding hearing shall be completed within” the statutorily-mandated

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

[14] Subsequently, in Matter of T.T., 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 a

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
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.

110 N.E.3d at 443.2 Again, in In re M.S., No. 18A-JC-2843, 2019 WL 2121505

(Ind. Ct. App. May 1, 2019), we held that the Legislature intended a fact-

2
We acknowledge that a panel of this Court stated in a footnote 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

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 finding hearing be conducted within 120 days of the filing of a CHINS petition

regardless of an act or agreement of the parties. More recently, we considered a

post-adjudication motion to dismiss a CHINS petition and concluded that the

timeliness requirement of Indiana Code Section 31-34-11-1 is not a mechanism

to collaterally attack a CHINS adjudication. Matter of J.S., 18A-JC-2816, 2019

WL 2508635, slip op. at 8 (Ind. Ct. App. June 18, 2019). A deadline, although

mandatory, does not provide a substitute for an appeal. See id.

[15] In sum, it is apparent that our Legislature intended that courts bring prompt

resolution to all matters where the state has assumed a parens patriae role and

stepped into the shoes of parents. The interlocking CHINS and termination

statutory schemes provide mandatory deadlines and include enforcement

mechanisms. This is not to say that the enforcement mechanisms are self-

executing and a party can stand idly by until an adverse determination has been

made. A party must preserve the right of expediency by filing a written motion

to dismiss before the merits of a petition are litigated. We need not decide

whether waiver can never under any circumstances be found. Here, both the

DCS and Father abandoned any acquiescence. The DCS asked for a hearing

setting within statutory parameters and Father filed a motion to dismiss.

Dismissal, even if re-filing was imminent, would have been warranted.

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.” M.M. v. Indiana Dep’t. of Child Servs., 118 N.E.3d 70, 77
n.2 (Ind. Ct. App. 2019). The language of Indiana Code Section 31-34-11-1 permits a continuance of a fact-
finding hearing beyond 60 days, with the consent of all parties. The statute 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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 Moreover, for reasons discussed below, the order terminating Father’s parental

rights is clearly erroneous.

Standard of Review – Termination of Parental Rights
[16] When we review whether the termination of parental rights is appropriate, we

will not reweigh the evidence or judge witness credibility. In re V.A., 51 N.E.3d

1140, 1143 (Ind. 2016). We will consider only the evidence and reasonable

inferences that are most favorable to the judgment. Id. In so doing, we give

“due regard” to the trial court’s unique opportunity to judge the credibility of

the witnesses. In re I.A., 934 N.E.2d 1127, 1132 (Ind. 2010) (citing Indiana

Trial Rule 52(A)). We will set aside the trial court’s judgment only if it is

clearly erroneous. K.T.K. v. Indiana Dep’t of Child Servs., 989 N.E.2d 1225, 1229

(Ind. 2013). In order to determine whether a judgment terminating parental

rights is clearly erroneous, we review the trial court’s judgment to determine

whether the evidence clearly and convincingly supports the findings and the

findings clearly and convincingly support the judgment. I.A., 934 N.E.2d at

1132.

Requirements for Involuntary Termination of Parental Rights
[17] “The Fourteenth Amendment to the United States Constitution protects the

traditional right of parents to establish a home and raise their children.” In re

Adoption of O.R., 16 N.E.3d 965, 972 (Ind. 2014). Although parental rights are

of a constitutional dimension, the law provides for the termination of those

rights when the parents are unable or unwilling to meet their parental

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 responsibilities. Bester v. Lake Cty. Office of Family & Children, 839 N.E.2d 143,

147 (Ind. 2005). The State is required to prove that termination is appropriate

by a showing of clear and convincing evidence, a higher burden than

establishing a mere preponderance. In re V.A., 51 N.E.3d at 1144.

[18] Indiana Code section 31-35-2-4(b)(2) sets out the elements that the DCS must

allege and prove by clear and convincing evidence to terminate a parent-child

relationship:

(A) that one (1) of the following is true:

(i) The child has been removed from the parent for at least six
(6) months under a dispositional decree.
(ii) A court has entered a finding under IC 31-34-21-5.6 that
reasonable efforts for family preservation or reunification are not
required, including a description of the court’s finding, the date
of the finding, and the manner in which the finding was made.
(iii) The child has been removed from the parent and has been
under the supervision of a local office or probation department
for at least fifteen (15) months of the most recent twenty-two (22)
months, beginning with the date the child is removed from the
home as a result of the child being alleged to be a child in need of
services or a delinquent child;

(B) that one (1) of the following is true:

(i) There is a reasonable probability that the conditions that
resulted in the child’s removal or the reasons for placement
outside the home of the parents will not be remedied.
(ii) There is a reasonable probability that the continuation of
the parent-child relationship poses a threat to the well-being of
the child.

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 (iii) The child has, on two (2) separate occasions, been
adjudicated a child in need of services;

(C) that termination is in the best interests of the child; and

(D) that there is a satisfactory plan for the care and treatment of
the child.

[19] Indiana Code Section 31-35-2-4(b)(2)(B) is written in the disjunctive, and

therefore the court need only to find that one of the three requirements of

subsection (b)(2)(B) was established by clear and convincing evidence. See In re

L.S., 717 N.E.2d 204, 209 (Ind. Ct. App. 1999).

Analysis
[20] The trial court entered findings regarding Father’s conduct and circumstances,

including the following:

John Mangano of Families First provided Domestic Violence
counseling to [Father] from June 2017 to July or August 2017.

Mr. Mangano ran a twenty-six week “Batterers Intervention
Group” which met once per week for two hours per week.

After attending for three weeks, [Father] stopped coming and Mr.
Mangano unsuccessfully discharged [him] due to lack of
attendance.

Adrian Fields of Seeds of Life facilitated parenting time between
the children and their parents from February 2015 to July 2018.

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 Ms. Fields only supervised one session with [Father] and that
was during a birthday party.

[Father] admitted to choking and hitting [Mother] in 2014 which
was the catalyst for the CHINS matter.

The FCM made multiple referrals for [Father] to receive
Domestic Violence Counseling and Father Engagement.
Nevertheless, [Father] still has not completed these services.

[Father] has not consistently exercised parenting time for the
duration of the CHINS case and hasn’t seen the children since
[J.C.]’s third birthday party in April 2018.

[Father] does not have stable housing and is currently in a work
release program.

In July 2017, [Father] pled guilty to battery on [Mother].

Mr. [Simon] Gelaye discharged [Father] unsuccessfully from
Father Engagement when [Father] stopped contacting Mr.
Gelaye.

Mr. Gelaye also discharged [Father] from Supervised Parenting
time due to excessive no shows and cancellations.

(Appealed Order at 2 – 4.)

[21] Father does not challenge any of the trial court’s factual findings as to him.

Rather, he focuses upon the trial court’s conclusions and asserts that they do

not support the termination decision. First, Father directs our attention to the

statutory language requiring clear and convincing evidence of a reasonable
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 probability that the conditions leading to removal will not be remedied. He

observes that the statutory language focuses upon the conditions and not upon

which parent engaged in remedial efforts. Second, he challenges the conclusion

that continuation of his relationship with Children poses a threat, specifically, a

barrier to permanence. He observes that the DCS plan of permanence –

adoption – was not put in place by the order on appeal. That is, Mother

retained her parental rights and Children are not eligible for adoption by their

foster parents. Finally, Father challenges the conclusion as to best interests of

Children, arguing that they are left in a more precarious position by the

bifurcated order because they are now deprived of a source of parental support

and Mother is left to shoulder the entire financial burden.

[22] Appellate review related to the “conditions leading to removal” prong invokes a

“two-step analysis.” In re E.M., 4 N.E.3d 636, 643 (Ind. 2014). First, we

identify the conditions that led to removal; and second, we must determine

whether there is a reasonable probability that those conditions will not be

remedied. Id. In the second step, the trial court must judge parental fitness as

of the time of the termination hearing, taking into consideration the evidence of

changed conditions. Id. (citing Bester, 839 N.E.2d at 152). The trial court is

entrusted with balancing a parent’s recent improvements against habitual

patterns of conduct. Id. The trial court has discretion to weigh a parent’s prior

history more heavily than efforts made only shortly before termination. Id.

“Requiring trial courts to give due regard to changed conditions does not

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 preclude them from finding that parents’ past behavior is the best predictor of

their future behavior.” Id.

[23] Here, it is undisputed that the condition leading to Children’s removal was

domestic violence. This circumstance was no longer a reason for continued

DCS placement because Mother had cooperated with services, criminally

prosecuted Father, and obtained a protective order and no-contact order. It is

apparent that Father engaged in no more than token efforts toward compliance

with services. That said, the statutory language focuses upon whether

conditions will likely be remedied and does not require proof that both parents

personally remediated a condition. For example, if a child were removed due

to a lack of housing, and one parent signed a lease obviating the reason for

continued placement outside the home, there is not “a reasonable probability

that the conditions resulting in removal or reasons for placement outside the

home will not be remedied.” I.C. § 31-35-2-4. Here, the DCS did not prove by

clear and convincing evidence a reasonable probability of lack of remediation;

rather, it proved Father made no contribution.

[24] Concerning the disjunctive element of parental threat, the trial court concluded

that continuation of the father-child relationship posed a specific threat: a

barrier to permanence. However, given the bifurcated order preserving

Mother’s parental rights, presumably Children’s “permanence” is with Mother

as opposed to the DCS plan of adoption by foster parents. In this scenario,

continuation of Father’s legal relationship with Children does not pose a

barrier. This is not to say that the existence of a legal relationship necessarily

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 entitles Father to unsupervised time with Children, given Father’s historical

disregard of the CHINS order, the no-contact order, and the protective order.

[25] Finally, Father contends that the DCS did not present clear and convincing

evidence that termination of his parental rights is in Child’s best interests. In

determining what is in a child’s best interests, the court must look to the totality

of the evidence. In re A.D.S., 987 N.E.2d 1150, 1158 (Ind. Ct. App. 2013), trans.

denied. We have previously held that recommendations by the case manager

and child advocate to terminate parental rights, in addition to evidence that the

conditions resulting in removal will not be remedied, is sufficient to show by

clear and convincing evidence that termination is in the child’s best interests.

Id. at 1158-59.

[26] Here, all evidence points to the conclusion that the condition of Children’s

exposure to domestic violence was remedied. Mother had obtained

employment and housing. The case manager and GAL recommended the

termination of both parent’s rights; the recommendation was followed as to one

parent and not the other. The Indiana Code does not prohibit termination of

only one parent’s rights. In re A.W., 62 N.E.3d 1267, 1273 (Ind. Ct. App.

2016). However, because Father is employed and there is no step-parent, the

practical effect of terminating Father’s rights is that it increases Mother’s

financial burden and deprives Children of a source of financial support; this is

not in Children’s best interests.

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 Conclusion
[27] Father demonstrated that the termination hearing was not timely conducted

and that the order terminating Father’s parental rights to Children is clearly

erroneous.

[28] Reversed.

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

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