In the Matter of J.S. (Child in Need of Services)
18A-JC-2816
COURT OF APPEALS OF INDIANA
June 18, 2019
Bailey, Judge.
ATTORNEY FOR APPELLANT
Rebecca M. Eimerman
Zionsville, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
Robert J. Henke
Deputy Attorney General
Indianapolis, Indiana
I N T H E
COURT OF APPEALS OF INDIANA
In the Matter of J.S. (Child in
Need of Services)
K.S. (Mother),
Appellant-Respondent,
v.
The Indiana Department of
Child Services,
Appellee-Petitioner.
June 18, 2019
Court of Appeals Case No.
18A-JC-2816
Appeal from the Hamilton Circuit
Court
The Honorable Paul A. Felix,
Judge
The Honorable Todd L. Ruetz,
Magistrate
Trial Court Cause No.
29C01-1709-JC-1220
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
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
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
Discussion and Decision
[5]
(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
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).
[7] This Court has previously had occasion to decide whether dismissal is appropriate under
[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
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.
[9] We agree with prior decisions of this Court that the language of
[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
[12] As a final matter, the DCS urges that “the timeframes in
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
[16] Affirmed.
Riley, J., and Pyle, J., concur.