MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                          FILED
this Memorandum Decision shall not be
                                                                         Mar 05 2020, 9:17 am
regarded as precedent or cited before any
court except for the purpose of establishing                                    CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Danielle Sheff                                           Curtis T. Hill, Jr.
Sheff Law Office                                         Attorney General of Indiana
Indianapolis, Indiana
                                                         David E. Corey
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of K.K., Minor                             March 5, 2020
Child in Need of Services;                               Court of Appeals Case No.
                                                         19A-JC-2233
A.K. (Father),
                                                         Appeal from the Marion Superior
Appellant-Respondent,                                    Court
        v.                                               The Honorable Danielle Gaughan,
                                                         Judge Pro Tempore
Indiana Department of Child                              The Honorable Gael S. Deppert,
Services,                                                Magistrate

Appellee-Petitioner.                                     Trial Court Cause No.
                                                         49D09-1903-JC-826



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-JC-2233 | March 5, 2020                     Page 1 of 9
                                            Statement of the Case
[1]   A.K. (“Father”) appeals the trial court’s determination that his minor child

      K.K. (“Child”), is a child in need of services (“CHINS”). 1 Father raises three

      issues for our review, which we consolidate and restate as two issues:


                 1.       Whether the trial court denied Father his right to due
                          process.

                 2.       Whether the Indiana Department of Child Services
                          (“DCS”) presented sufficient evidence to support the
                          CHINS determination.


[2]   We affirm.


                                     Facts and Procedural History
[3]   Child was born to Father and A.H. (“Mother”) out-of-wedlock on December

      26, 2017. On March 27, 2019, while Child was living with Mother and Child’s

      half-sibling K.C., DCS filed a petition alleging that Child was a CHINS due to

      Mother’s substance abuse and a history of domestic abuse between Father and

      Mother. During a fact-finding hearing on July 12 at which Father was present,

      Mother agreed that Child was a CHINS and that the coercive intervention of

      the court was necessary “because [Mother] needs assistance to provide a home

      free from substance abuse.” Appellant’s App. Vol. 2 at 86. And “Mother

      agreed to engage in intensive outpatient treatment through Famil[ies] First,




      1
          Child’s mother does not participate in this appeal.


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2233 | March 5, 2020   Page 2 of 9
      random drug screens, trauma based therapeutic assessment, and follow all

      recommendations made by service providers.” Id. Father requested court-

      appointed counsel, which the trial court granted. And the court scheduled a

      fact-finding hearing for Father for July 15. Nonetheless, the trial court found

      Child to be a CHINS on July 12 and proceeded to disposition with Mother.


[4]   On July 15, during Father’s fact-finding hearing, counsel for Father stated as

      follows:


              [Father] has decided he would waive fact-finding because he does
              not wish to remove the child from mother’s care and believes that
              mother is in need of assistance, so he has no problem with a
              waiver of the fact-finding. We do however wish to establish
              paternity, and he is requesting [a] DNA[ test].


      Tr. at 4. Given Father’s waiver, the court proceeded to schedule a dispositional

      hearing for Father. The trial court stated that the hearing would be held “in 30

      days,” and the court reporter stated that the hearing would be held at 8:30 a.m.

      on August 16, which was thirty-two days later. Id. at 6. With no objection, the

      trial court adjourned the hearing.


[5]   On August 16, immediately prior to the dispositional hearing, Father filed a

      motion to dismiss the CHINS proceeding for two alleged statutory violations.

      In particular, Father alleged that the court did not hold a dispositional hearing

      within thirty days of the CHINS determination, as required by Indiana Code

      Section 31-34-19-1. And he alleged that DCS did not provide him with a copy

      of its predispositional report within forty-eight hours of the hearing as required


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2233 | March 5, 2020   Page 3 of 9
      by Indiana Code Section 31-34-18-6. The trial court took the motion under

      advisement and rescheduled the hearing for August 23. On that date, the court

      denied Father’s motion, conducted the dispositional hearing, and entered its

      dispositional decree for Father. In the decree, per DCS’ request, the court

      ordered no services for Father, and, per Father’s request, the court ordered

      supervised parenting time with Child, who was already in temporary placement

      with Mother. This appeal ensued.


                                     Discussion and Decision
                                          Issue One: Due Process

[6]   Father first alleges two due process violations. “Due process protections bar

      ‘state action that deprives a person of life, liberty, or property without a fair

      proceeding.’” J.A. v. Ind. Dep’t of Child Servs. (In re G.P.), 4 N.E.3d 1158, 1165

      (Ind. 2014) (quoting Z.G. v. Marion Cty. Dep’t of Child Servs. (In re C.G.), 954

      N.E.2d 910, 916 (Ind. 2011)). “[D]ue process protections at all stages of

      CHINS proceedings are ‘vital’ because ‘[e]very CHINS proceeding has the

      potential to interfere with the rights of parents in the upbringing of their

      children.’” Id. (quoting N.L. v. Ind. Dep’t of Child Servs. (In re N.E.), 919 N.E.2d

      102, 108 (Ind. 2010)). Due process requires “the opportunity to be heard at a

      meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S.

      319, 333, (1976).


[7]   Father contends that the trial court violated his right to due process when it

      determined that Child was a CHINS prior to Father’s fact-finding hearing.


      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2233 | March 5, 2020   Page 4 of 9
      Father also contends that the court violated his right to due process when it

      conducted Father’s dispositional hearing more than thirty days after the CHINS

      determination. We address each contention in turn.


                                            Fact-finding Hearing

[8]   Father first asserts that the trial court violated his right to due process when it

      adjudicated Child a CHINS prior to his fact-finding hearing. Father maintains

      that the trial court “worked a hardship upon [Father] and deprived him of due

      process” with its “premature determination” that Child was a CHINS on July

      12, which was three days prior to Father’s fact-finding hearing. Appellant’s Br.

      at 31. Again, on July 12, the trial court held a fact-finding hearing on the

      CHINS petition, and both Father and Mother appeared. Father, who had

      previously intended to hire private counsel, advised the court that he was

      requesting a court-appointed attorney, and the court granted that request.

      Accordingly, the court scheduled a fact-finding hearing for Father for July 15.

      In the meantime, the court held the fact-finding hearing with Mother, who

      submitted to the trial court an agreed entry that Child was a CHINS, and the

      court entered a dispositional order for Mother.


[9]   Accordingly, in its July 12 order the court stated as follows:


              Court accepts mother’s admission, . . . circumstances require
              adjudication under mother’s agreed entry prior to any
              adjudication pursuant to [Father] based upon a review of the
              Preliminary Inquiry and DCS’ petition alleging [Father] and a
              history he may have of domestic violence with mother, [Father]



      Court of Appeals of Indiana | Memorandum Decision 19A-JC-2233 | March 5, 2020   Page 5 of 9
               having previously made a knowing and voluntary waiver of his
               right to counsel . . . at the Initial Hearing in this cause, and
               continued to assert that right until mediation on or about
               6/18/19 and was prepared to inform the Court prior to today’s
               fact-finding but did not, and that the 120th day statutory time
               requirement [to hold a fact-finding hearing] is 7/25/19, and
               Court adjudicates [Child] is a minor child in need of services.


       Appellant’s App. Vol. 2 at 86.


[10]   Father is correct that the trial court was “required to reserve its judgment on the

       [CHINS] petition until the completion of Father’s fact-finding hearing,” which

       it did not do. See S.C. v. Ind. Dep’t of Child Servs. (In re L.C.), 23 N.E.3d 37, 42

       (Ind. Ct. App. 2015), trans. denied. However, when the trial court informed

       Father it would proceed with Mother’s fact-finding hearing on July 12 and hold

       a fact-finding hearing for Father three days later, Father did not object.

       Accordingly, he did not preserve his due process claim for appellate review.

       Moreover, on July 15, Father affirmatively waived his right to a fact-finding

       hearing—insofar as Father might have been entitled to relief on appeal, it would

       be to have a fact-finding hearing that he has already deemed unnecessary.

       Father has not shown reversible error.


                                            Dispositional Hearing

[11]   Father next contends that, because the trial court scheduled his dispositional

       hearing more than thirty days after the CHINS determination, the court should

       have granted his motion to dismiss on that ground. Indiana Code Section 31-

       34-19-1 (2019) provides:


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2233 | March 5, 2020   Page 6 of 9
               (a) The juvenile court shall complete a dispositional hearing not
               more than thirty (30) days after the date the court finds that a
               child is a child in need of services to consider the following:

                        (1) Alternatives for the care, treatment, rehabilitation,
                        or placement of the child.

                        (2) The necessity, nature, and extent of the
                        participation by a parent, a guardian, or a custodian
                        in the program of care, treatment, or rehabilitation
                        for the child.

                        (3) The financial responsibility of the parent or
                        guardian of the estate for services provided for the
                        parent or guardian or the child.

                        (4) The recommendations and report of a dual status
                        assessment team if the child is a dual status child.

               (b) If the dispositional hearing is not completed in the time set forth in
               subsection (a), upon a filing of a motion with the court, the court shall
               dismiss the case without prejudice.


       (Emphasis added).


[12]   Here, the trial court determined that Child was a CHINS on July 12 and held a

       dispositional hearing for Mother the same day. Thereafter, Father waived fact-

       finding, and the trial court scheduled a dispositional hearing for Father on

       August 16. Immediately prior to the August 16 hearing, Father moved to

       dismiss the CHINS proceeding for the court’s failure to hold his dispositional

       hearing within thirty days of the CHINS determination, as required by the

       statute.


       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2233 | March 5, 2020        Page 7 of 9
[13]   However, again, Father cannot show any prejudice as a result of this alleged

       due process violation. The purpose of a dispositional hearing is for the court

       “to determine [the] next steps in the child’s placement, care, treatment, or

       rehabilitation and the nature and extent of the parent’s . . . role in fulfilling

       those steps.” Gr.J. v. Ind. Dep’t of Child Servs. (In re D.J.), 68 N.E.3d 574, 578

       (Ind. 2017) (citing I.C. § 31-34-19-1). Here, during Father’s dispositional

       hearing, DCS did not request that Father participate in any services, and the

       trial court granted Father’s request for continued supervised visitation with

       Child, who remained in Mother’s custody. In contrast, during Mother’s

       dispositional hearing, the court determined, and Father agreed, that Mother

       needed services, and the court timely ordered those services for Mother the

       same day that it found Child to be a CHINS. Because there were no “next

       steps” to be determined thereafter, the delay in Father’s hearing simply had no

       impact on Father or Child, and the alleged error was harmless. App. R. 66.


[14]   In sum, Father has not shown that he was denied an opportunity to be heard at

       a meaningful time and in a meaningful manner. He waived fact-finding, he was

       not ordered to participate in any services, and the court granted his request for

       supervised visitation with Child. Again, Father has not shown reversible error.


                                 Issue Two: Sufficiency of the Evidence

[15]   Father’s contention on this final issue is difficult to discern. Again, Mother

       admitted that Child was a CHINS and Father waived fact-finding, so to the

       extent his argument on appeal is that the evidence is insufficient to support the

       CHINS determination, it is not well taken. To the extent Father suggests that,
       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2233 | March 5, 2020   Page 8 of 9
       had the trial court reserved judgment until after both Mother’s and Father’s

       fact-finding hearings, the outcome might have been different, he does not

       present cogent argument in support of such an assertion. We hold that Father

       has waived any challenge to the sufficiency of the evidence to support the

       CHINS determination.


[16]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-JC-2233 | March 5, 2020   Page 9 of 9
