                                                                                 FILED
                                                                            May 15 2019, 8:56 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Zachary J. Stock                                           Curtis T. Hill, Jr.
      Zachary J. Stock, Attorney at Law, P.C.                    Attorney General of Indiana
      Indianapolis, Indiana                                      Robert J. Henke
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of M.S.;                                     May 15, 2019
      A Child in Need of Services:                               Court of Appeals Case No.
      A.C. (Mother),                                             18A-JC-2843
      Appellant-Respondent,                                      Appeal from the Hendricks
                                                                 Superior Court
              v.                                                 The Honorable Karen M. Love,
                                                                 Judge
      Indiana Department of Child                                Trial Court Cause No.
      Services,                                                  32D03-1711-JC-186
      Appellee-Petitioner.



      Pyle, Judge.


                                        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 of Services (“CHINS”) based on a petition


      Court of Appeals of Indiana | Opinion 18A-JC-2843 | May 15, 2019                               Page 1 of 6
      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 INDIANA CODE § 31-

      34-11-1. Concluding that Mother is correct that the hearing was not timely

      completed, we reverse the trial court’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. was a CHINS. At the beginning of the December 13, 2017

      CHINS factfinding hearing, the trial court pointed out that the 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 be 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

      Court of Appeals of Indiana | Opinion 18A-JC-2843 | May 15, 2019           Page 2 of 6
      investigation that gave rise to the CHINS petition. The trial court held a hearing

      on the motions on February 16 and ordered the police department to provide

      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 hearing that had started in December 2017. The trial

      court granted the continuance.


[5]   The factfinding hearing was completed in April 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 hearing had not been held within one-hundred and

      twenty days of the filing of the CHINS petition. In support of 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

      INDIANA CODE § 31-34-11-1 was a “certain deadline.” The trial court denied

      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 INDIANA CODE § 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

      Court of Appeals of Indiana | Opinion 18A-JC-2843 | May 15, 2019              Page 3 of 6
              a petition alleging that a child is a child in need of services is filed
              in accordance with Ind. 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 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). 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 that the General Assembly intend[ed] [the statute] to mean anything

      other than what its clear language 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 concluded 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 timeframe. 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,


      Court of Appeals of Indiana | Opinion 18A-JC-2843 | May 15, 2019                   Page 4 of 6
      we explained that although subsection (a) provided that the parties could waive

      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] that the General Assembly intend[ed] to require that a
               factfinding hearing [had to] 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.


      Id.    We therefore reversed the trial court’s judgment and remanded with

      instructions to dismiss the CHINS case without prejudice. We also pointed out

      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 at 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 instructions to dismiss the CHINS

      case without prejudice.1 In addition, if DCS refiles the petition, it will also have




      1
        We note that another panel of this Court stated in a footnote in A.M. v. Indiana Dep’t of Child Servs., 118
      N.E.3d 70, 77 n.2 (Ind. Ct. App. 2019) that in certain circumstances, it is within the trial court’s authority to
      continue the factfinding hearing beyond 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.

      Court of Appeals of Indiana | Opinion 18A-JC-2843 | May 15, 2019                                      Page 5 of 6
[9]    to submit new evidence regarding current conditions.


[10]   Reversed and remanded with instructions.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JC-2843 | May 15, 2019   Page 6 of 6
