                                                                                   FILED
                                                                               Apr 17 2018, 8:50 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




ATTORNEY FOR APPELLANTS                                     ATTORNEYS FOR APPELLEE
Scott A. Norrick                                            Curtis T. Hill, Jr.
Anderson, Indiana                                           Attorney General of Indiana
                                                            David E. Corey
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA
In the Matter of: J.R. and M.R.,                            April 17, 2018
Children in Need of Services,                               Court of Appeals Case No.
                                                            80A02-1704-JC-806
D.R. (Mother) and M.R.
(Father),                                                   Appeal from the Tipton Circuit
                                                            Court
Appellants-Respondents,
                                                            The Hon. Thomas R. Lett, Judge
        v.                                                  Trial Court Cause Nos.
                                                            80C01-1609-JC-144,
Indiana Department of Child                                 80C01-1609-JC-145
Services,
Appellee-Petitioner.




Bradford, Judge.




Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018                       Page 1 of 7
                                            Case Summary
[1]   Appellants-Respondents D.R. (“Mother”) and M.R. (“Father”) (collectively,

      “Parents”) appeal from the juvenile court’s determination that J.R. and M.R.

      (“the Children”) are children in need of services (“CHINS”). Parents contend

      that the juvenile court erred in denying their motion to dismiss the CHINS

      petitions filed by the Appellee-Petitioner the Indiana Department of Child

      Services (“DCS”), which motion was made on the ground that the fact-finding

      hearing was not completed within the statutorily-required sixty-day period after

      the filing of the CHINS petitions. Because we agree with Parents, we reverse

      the judgment of the juvenile court and remand with instructions to dismiss

      DCS’s CHINS petitions without prejudice.



                             Facts and Procedural History
[2]   On or about September 23, 2016, Tipton County DCS received a report that

      Father was abusing Children, their older sibling, and Mother. On September

      29, 2016, DCS filed its petitions to have M.R. and J.R. declared to be CHINS.

      On November 22, 2016, the juvenile court began a factfinding hearing. On

      November 29, 2016, the juvenile court ordered that the continued factfinding

      hearing be completed on February 6, 2017. On December 27, 2016, Parents

      objected to the continuance of the factfinding hearing outside the sixty-day limit

      imposed by Indiana Code section 31-34-11-1. The juvenile court overruled the

      objection. On January 11, 2017, Parents moved to dismiss, arguing that the

      factfinding hearing had not been completed within the required sixty days

      Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018   Page 2 of 7
      following the filing of the CHINS petitions. On February 6, 2017, the juvenile

      court denied Parents’ motion to dismiss and completed the continued

      factfinding hearing.


[3]   On February 23, 2017, the juvenile court issued orders in which it found the

      Children to be CHINS. On March 14, 2017, the juvenile court entered a

      dispositional order. On April 10, 2017, Parents filed their notice of appeal from

      the CHINS determinations. On July 10, 2017, Parents filed a Trial Rule 60(B)

      motion to set aside the juvenile court’s judgment, which motion the juvenile

      court denied on July 20, 2017. On August 10, 2017, Parents filed their notice of

      appeal from the juvenile court’s denial of their motion for relief from judgment.

      Parents’ two appeals were consolidated by order of this court.



                                  Discussion and Decision
[4]   Parents contend that the juvenile court erred in denying their motion to dismiss

      the CHINS petitions on the basis that the factfinding hearing was not

      completed within the required sixty days, the juvenile court lacked authority to

      enter a CHINS finding due to the failure to complete factfinding within sixty

      days, and the evidence is insufficient to support the juvenile court’s CHINS

      determination. Because we conclude that Parents’ first claim is dispositive, we

      need not address their others.




      Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018   Page 3 of 7
                                          Motion to Dismiss
[5]   Parents argue that the juvenile court erred in denying their motion to dismiss

      pursuant to Indiana Code section 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 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.
              ….
              (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.
      (Emphases added).


[6]   This case turns on interpretation of the above provisions. An issue of statutory

      construction presents a question of law which is reviewed de novo on appeal.

      State v. Eichorst, 957 N.E.2d 1010, 1012 (Ind. Ct. App. 2011), trans. denied;

      Chrysler Group, LLC v. Review Bd. of the Ind. Dep’t. of Workforce Dev., 960 N.E.2d

      118, 124 (Ind. 2012). Pursuant to this standard of review, this Court owes no

      deference to the juvenile court’s statutory interpretation. Morgan Cnty. v.

      Ferguson, 712 N.E.2d 1038, 1043 (Ind. Ct. App. 1999); Art Country Squire, L.L.C.

      v. Inland Mortg. Corp., 745 N.E.2d 885, 889 (Ind. Ct. App. 2001).


      Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018          Page 4 of 7
[7]   In a 2007 case addressing a similar argument made pursuant to the sixty-day

      limit in a previous version of Indiana Code section 31-34-11-1, we concluded

      that “‘shall’ as used in Indiana Code Section[] 31-34-11-1 … [wa]s directory

      and not mandatory.” Parmeter v. Cass Cnty. Dep’t of Child Servs., 878 N.E.2d 444,

      448 (Ind. Ct. App. 2007). Our holding was based on the principle that “the

      term ‘shall’ is directory when the statute fails to specify adverse consequences,

      the provision does not go to the essence of the statutory purpose, and a

      mandatory construction would thwart the legislative purpose.” Id. We noted

      the lack of specific consequences detailed in statute and that the CHINS statutes

      “were enacted in part to ‘assist[] parents to fulfill their parental obligations’ and

      to ‘remove children from families only when it is the child’s best interest[.]’” Id.

      (citations omitted). We ultimately concluded that “a mandatory construction

      [of ‘shall’] would thwart those legislative purposes by requiring dismissal of

      CHINS cases where continuances of the fact-finding or dispositional hearings

      are needed for legitimate reasons, such as the unavailability of parties or

      witnesses or the congestion of the court calendar, merely because one party is

      being a stalwart.” Id. Be that as it may, we agree with Parents that Parmeter has

      been superseded by legislative revision to Indiana Code section 31-34-11-1 and

      is no longer good law on this point.


[8]   When Parmeter was decided, subsection 31-34-11-1(d) did not yet exist, being

      added in a 2012 revision. Subsection (d) cures one of the ambiguities of the

      statute (as identified by Parmeter) by spelling out the adverse consequence for

      failing to complete a factfinding hearing within the sixty-day period. At the


      Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018      Page 5 of 7
      same time, while it is true that “[t]he word ‘shall’ may be given the meaning of

      the word ‘may’ in order to prevent the defeat of the legislative intent[,]” Wysong

      v. Auto. Underwriters, 204 Ind. 493, 504, 184 N.E. 783, 787 (1933), the 2012

      revision leaves very little room for doubt regarding legislative intent. Rather

      than changing “shall” to “may” or adding provisions allowing for continuances

      for good cause, the General Assembly instead added subsection (d). Simply

      put, there is no longer any reason to believe that the General Assembly intends

      Indiana Code section 31-34-11-1 to mean anything other than what its clear

      language indicates, i.e., that a factfinding hearing shall be completed within

      sixty days of the filing of a CHINS petition and that failure to do so is grounds

      for dismissal. Parmeter is no longer good law on this point, and we conclude

      that the juvenile court erred in denying Parents’ motion to dismiss.


[9]   While it may be that in many cases DCS would refile, it is important to note

      that it would not be able to just simply refile the same CHINS petition; it still

      has to get approval to refile from the juvenile court, and this can only be given

      after a probable cause determination:


              The juvenile court shall do the following:
              (1) Consider the preliminary inquiry and the evidence of probable
              cause that is contained in the report of the preliminary inquiry or
              an affidavit of probable cause.
              (2) Authorize the filing of a petition if the court finds probable
              cause to believe that the child is a child in need of services.
      Ind. Code § 31-34-9-2.




      Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018     Page 6 of 7
[10]   We note that “[a] CHINS finding should consider the family’s condition not

       just when the case was filed, but also when it is heard.” In re S.D., 2 N.E.3d

       1283, 1290 (Ind. 2014). Therefore, should DCS refile, 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 conditions at the

       current time.


[11]   Moreover, 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. We believe that any change (including the imposition

       of any more severe consequences) has to come from the General Assembly, and

       unless/until that occurs, we are bound to apply the statute as written.

       Consequently, we reverse the judgment of the juvenile court and remand with

       instructions to dismiss DCS’s CHINS petitions without prejudice.


[12]   We reverse the judgment of the juvenile court and remand with instructions.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018   Page 7 of 7
