Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                          FILED
any court except for the purpose of                          Jan 27 2012, 8:40 am
establishing the defense of res judicata,
collateral estoppel, or the law of the                              CLERK
                                                                  of the supreme court,
case.                                                             court of appeals and
                                                                         tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MARK SMALL                                        KARRIE K. MCCLUNG
Indianapolis, Indiana                             DCS, Miami County Office

                                                  ROBERT J. HENKE
                                                  DCS Central Administration
                                                  Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

IN THE MATTER OF L.L., (CHINS),                   )
K.R.S. (Mother),                                  )
                                                  )
       Appellant,                                 )
                                                  )
              vs.                                 )      No. 52A05-1107-JC-382
                                                  )
INDIANA DEPARTMENT OF CHILD                       )
SERVICES,                                         )
                                                  )
       Appellee.                                  )


                        APPEAL FROM THE MIAMI CIRCUIT COURT
                        The Honorable Rick A. Maughmer, Special Judge
                                Cause No. 52C01-1011-JC-77


                                      January 27, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
                              STATEMENT OF THE CASE

      K.R.S. (“Mother”) appeals the juvenile court’s determination that her daughter,

L.L., was a child in need of services (“CHINS”).

      We affirm.

                                         ISSUE

      Whether the juvenile court denied Mother procedural due process during
      the CHINS proceeding.

                                         FACTS

      L.L., born in November 2000, has autism, which is a “spectrum disorder” in which

there is a “wide range of developmental . . . functioning.” (Tr. 112). L.L. is on the “low

end” of the spectrum and “requires a very high level of care and supervision.” (Tr. 113).

      DCS had been involved in CHINS proceedings with L.L. and Mother during 2009-

2010. During that proceeding, DCS removed L.L. from Mother’s home in Miami County

and placed her at Damar in Indianapolis. L.L. was ultimately discharged from Damar on

March 5, 2010 and returned to Mother’s care. Upon her discharge from Damar, L.L.,

who had been incontinent and wore diapers when admitted to Damar, was toilet trained

and able to wear underwear.

      In the Fall of 2010, DCS received reports regarding L.L.’s lack of personal

hygiene at school as well as an escalation of her symptoms associated with autism and an

overall deterioration of her behavior. DCS contacted Mother regarding the reports and,

in the course of the investigation, discovered that there were also some issues with

Mother properly administering medication. On October 5, 2010, DCS received a report


                                            2
that L.L. went to school with feces in her hair. DCS ultimately removed L.L. from

Mother’s home and again placed her at Damar.

       On November 4, 2010, DCS filed with the Miami County juvenile court a request

for authorization to file a petition alleging that L.L. was a CHINS.1 That same day, the

juvenile court granted DCS’s request, DCS filed a petition alleging that L.L. was a

CHINS, and the juvenile court held an emergency initial hearing,2 at which Mother

appeared and was represented by counsel.

       On February 3, 2011, the juvenile court held a fact-finding hearing, at which

Mother appeared and was represented by counsel. On February 14, 2011, the juvenile

court issued an order finding L.L. to be a CHINS and setting the dispositional hearing for

March 7, 2011.

         On March 7, 2011, counsel for DCS filed a motion to reset the dispositional

hearing. In the motion, counsel stated that he was ill and that “[c]ounsel for [M]other

was notified and did not oppose.” (DCS’s App. at 3). That same day, the juvenile court

granted the motion and reset the hearing for May 26, 2011.

       The juvenile court held the dispositional hearing on May 26. Mother was present

at this hearing and represented by counsel. During the hearing, the court appointed

special advocate testified and recommended that L.L. be returned to Mother’s care.


1
  DCS also initiated CHINS proceedings for L.L.’s eleven-year-old brother, M.L.      M.L.’s CHINS
determination is not part of this appeal.
2
  Immediately after this emergency initial hearing, the juvenile court judge, Judge Robert A. Spahr,
recused himself from this matter, and Judge Richard A. Maughmer of Cass County assumed jurisdiction
as a special judge on November 17, 2010.

                                                 3
Chanda Johnson, an autism specialist with Damar, testified that when L.L. was

readmitted to Damar, she had “regressed across all levels of functioning.” (Tr. 106). She

testified that L.L. had regressed in her personal hygiene skills, was in diapers again, and

had elevated levels of maladaptive behaviors, including physical and verbal aggression

and self injury. Johnson also testified that Mother had been receiving autism education

classes from Damar and had been regularly visiting L.L. Additionally, Johnson testified

that L.L. needs a specialized level of care, such as in a group home.

       Thereafter, the juvenile court issued its dispositional order, in which it ordered that

L.L. remain a CHINS ward with continued placement at Damar until DCS was able to

locate a group home closer to Mother’s residence in Miami County. The juvenile court

also ordered Mother to, among other things, continue in autism education classes in order

to gain an understanding of L.L’s needs.

                                        DECISION

       Mother does not challenge the sufficiency of the evidence used to support the

CHINS determination but contends that the determination should be reversed because her

due process rights were violated during the CHINS proceeding when the juvenile court

failed to follow certain statutory procedures.

       “The Due Process Clause of the United States Constitution prohibits state action

that deprives a person of life, liberty or property without a fair proceeding.” Lawson v.

Marion Cnty. Office of Family & Children, 835 N.E.2d 577, 579 (Ind. Ct. App. 2005).

“Although due process has never been precisely defined, the phrase expresses the

requirement of ‘fundamental fairness.’” Id. (quoting In re M.M., 733 N.E.2d 6, 10 (Ind.

                                              4
Ct. App. 2000)).      Due process requires notice, an opportunity to be heard, and an

opportunity to confront witnesses. In re M.L.K., 751 N.E.2d 293, 295–96 (Ind. Ct. App.

2001).

1. Dispositional Hearing

         Mother first argues that the juvenile court denied her procedural due process

because it did not hold the dispositional hearing within the statutorily prescribed time

limit. Indiana Code section 31-34-19-1 provides that a “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[.]” (Emphasis added). Mother contends that her due

process rights were violated when the dispositional hearing was held more than thirty

days after the juvenile court determined that L.L. was a CHINS.

         “It is well established that we may consider a party’s constitutional claim waived

when it is raised for the first time on appeal.” Hite v. Vanderburgh Cnty. Office of

Family & Children, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006) (citing McBride v. Monroe

Cnty. Office of Family & Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003)). Here, our

review of the record reveals that Mother never raised an objection before the juvenile

court regarding the timing of the dispositional hearing.3 Thus, Mother’s argument that

her due process rights were violated by the timing of the dispositional hearing is waived.

See, e.g., McBride, 798 N.E.2d at 194-95 (holding that the mother had waived her



3
  During the dispositional hearing, Mother’s counsel merely commented that the dispositional hearing
should have been held within thirty days of the CHINS determination, but Mother did not otherwise
object to the timing of the dispositional hearing or move to dismiss the CHINS determination based on
the timing of the hearing.
                                                 5
constitutional challenge to alleged deficiencies in the CHINS proceedings by failing to

object during the CHINS proceedings or argue them in termination proceeding).

       Waiver notwithstanding, Mother’s due process rights were not violated by the

delay in the dispositional hearing. In Parmeter v. Cass Cnty. Dep’t of Child Servs., 878

N.E.2d 444, 448 (Ind. Ct. App. 2007), reh’g denied, our court held that the term “shall”

in the dispositional hearing statute, Indiana Code section 31-34-19-1, was “directory” and

“not mandatory.” We explained that:

       A statute containing the term “shall” generally connotes a mandatory as
       opposed to a discretionary import. However, “shall” may be construed as
       directory instead of mandatory “to prevent the defeat of the legislative
       intent.” Thus, 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.

Parmeter, 878 N.E.2d at 448 (internal citations omitted). Because the dispositional

hearing statute does not contain any specific consequence for the failure to comply with

the thirty-day time limit, we concluded that the “shall” as used in that statute was merely

directory. Id. We further explained that

       holding the hearings within the statutory time limits does not go to the
       purpose of the CHINS statutes, which 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 . . . .” Ind. Code § 31–10–
       2–1(4), (6). And a mandatory construction 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.



                                             6
       Here, the juvenile court held a fact-finding hearing in February 2011 and

thereafter determined that L.L. was a CHINS. It is clear that the May 2011 dispositional

hearing was held outside the thirty-day time limit set forth in the dispositional hearing

statute. See I.C. § 31-34-19-1. Further, it is not disputed that the juvenile court initially

set the matter for disposition in March 2011; however, counsel for DCS became ill,

notified Mother’s counsel of such, and requested a continuance without objection from

Mother’s counsel. Mother did not object to the delay of the dispositional hearing and has

not shown how this delay deprived her of an opportunity to participate in the

dispositional hearing or how she was otherwise prejudiced. Accordingly, we conclude

Mother’s due process rights were not violated by the timing of the dispositional hearing.

See, e.g., Parmeter, 878 N.E.2d at 448.

2. Disposition Decree

       Mother also argues that the juvenile court denied her procedural due process

because the findings and conclusions in the dispositional decree were not sufficiently

specific. Indiana Code section 31-34-19-10, which addresses findings and conclusions in

a dispositional decree, provides:

       (a) The juvenile court shall accompany the court’s dispositional decree with
       written findings and conclusions upon the record concerning the following:

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

              (2) The need for participation by the parent, guardian, or custodian
              in the plan of care for the child.

              (3) Efforts made, if the child is a child in need of services, to:


                                              7
                     (A) prevent the child’s removal from; or

                     (B) reunite the child with; the child’s parent, guardian, or
                     custodian in accordance with federal law.

              (4) Family services that were offered and provided to:

                     (A) a child in need of services; or

                     (B) the child’s parent, guardian, or custodian; in accordance
                     with federal law.

              (5) The court’s reasons for the disposition.

       (b) The juvenile court may incorporate a finding or conclusion from a
       predispositional report as a written finding or conclusion upon the record in
       the court’s dispositional decree.

       Mother argues that her due process rights were violated because the juvenile

court’s dispositional order failed to include a specific reference to subsection (a)(3), the

efforts made to prevent L.L.’s removal or to reunite L.L. with Mother, as well as to

subsection (a)(4), the family services offered to L.L. or to Mother.

       Here, the juvenile court expressly incorporated DCS’s predispositional report into

its dispositional order, which it is permitted to do under Indiana Code section 31-34-19-

10(b). Our review of DCS’s ten-page predispositional report and three-page attachment

reveals that it contains family history, background, and consultation with professionals,

efforts made by DCS prior to L.L.’s removal, and services and treatment options for

Mother.   Additionally, it is clear that the juvenile court did not make a wholesale

adoption of DCS’s report and recommendations. For example, the juvenile court also

made some specific recommendations of its own, such as transitioning L.L. to a group



                                             8
home closer to Mother’s residence so that Mother could participate more in L.L.’s care in

an effort to eventually reunify L.L. with Mother.

       After review of the record before us, we conclude that the juvenile court’s

dispositional order as a whole meets the statutory requirements of Indiana Code section

31-34-19-10 and that there is no due process violation. See, e.g., McBride, 798 N.E.2d at

196 (finding that juvenile court’s order incorporating predispositional report complied, as

a whole, with dispositional order statute).

       Affirmed.

BAKER, J., and BAILEY, J., concur.




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