In the Matter of M.S.; A Child in Need of Services
18A-JC-2843
COURT OF APPEALS OF INDIANA
May 15, 2019
ATTORNEY FOR APPELLANT
Zachary J. Stock
Zachary J. Stock, Attorney at Law, P.C.
Indianapolis, 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 M.S.;
A Child in Need of Services:
A.C. (Mother),
Appellant-Respondent,
v.
Indiana Department of Child
Services,
Appellee-Petitioner.
May 15, 2019
Court of Appeals Case No.
18A-JC-2843
Appeal from the Hendricks
Superior Court
The Honorable Karen M. Love,
Judge
Trial Court Cause No.
32D03-1711-JC-186
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 оf Services (“CHINS”) based on a petition 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
completed, we reverse the trial cоurt’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. wаs a CHINS. At the beginning of the December 13, 2017
CHINS factfinding hearing, the trial court pointed out that thе 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 bе 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 investigation that gave rise to the CHINS petitiоn. The trial court held a hearing
on the motions on February 16 and ordered the poliсe department
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 hеaring that had started in December 2017. The trial
court granted the continuance.
[5] The factfinding hearing was completed in Aрril 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 hеaring had not been held within one-hundred and
twenty days of the filing of the CHINS petition. In support оf 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
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
relevant part as follows:
(a) Except as prоvided 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 withInd. 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 hеld 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 thаt the General Assembly intend[ed] [the statute] to mean anything
other than what its clear languаge 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 conсluded 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 timеframe. 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, we explained that although subsection (a) provided that the parties could waivе
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] thаt the General Assembly intend[ed] to require that a
factfinding hearing [had to] be complеted 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 familiesthat are subject
to CHINS proceedings.
Id. We therefore reversed the trial court’s judgmеnt and remanded with
instructions to dismiss the CHINS case without prejudice. We also pointed оut
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 аt 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 instructiоns to dismiss the CHINS
case without prejudice.1 In addition, if DCS refiles the petition, it will also have
[9] to submit new evidence regarding current conditions.
[10] Reversed and remanded with instructions.
Riley, J., and Bailey, J., concur.
Notes
continue the factfinding hearing bеyond 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.