                                                                            FILED
                                                                      Jun 18 2019, 8:13 am

                                                                            CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Rebecca M. Eimerman                                         Curtis T. Hill, Jr.
Zionsville, Indiana                                         Attorney General of Indiana
                                                            Robert J. Henke
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of J.S. (Child in                             June 18, 2019
Need of Services)                                           Court of Appeals Case No.
                                                            18A-JC-2816
                                                            Appeal from the Hamilton Circuit
K.S. (Mother),                                              Court
Appellant-Respondent,                                       The Honorable Paul A. Felix,
                                                            Judge
        v.
                                                            The Honorable Todd L. Ruetz,
                                                            Magistrate
The Indiana Department of
                                                            Trial Court Cause No.
Child Services,
                                                            29C01-1709-JC-1220
Appellee-Petitioner.



Bailey, Judge.




Court of Appeals of Indiana | Opinion 18A-JC-2816 | June 18, 2019                              Page 1 of 8
                                            Case Summary
[1]   K.S. (“Mother”) had three children (“Children”), all of whom were adjudicated

      Children in Need of Services (“CHINS”). Post-adjudication, during

      permanency proceedings, Mother unsuccessfully moved to dismiss the CHINS

      case concerning her eldest child, J.S. On January 4, 2019, this Court granted

      Mother permission to bring an interlocutory appeal to challenge the denial of

      that motion. She presents the sole issue of whether she is entitled to dismissal

      pursuant to Indiana Code Section 31-34-11-1(d), which provides for dismissal of

      a CHINS case if a factfinding hearing is not completed within 60 days (or 120

      days with party consent) after the filing of a CHINS petition. We affirm.



                             Facts and Procedural History
[2]   On September 25, 2017, the Hamilton County Department of Child Services

      (“the DCS”) filed a CHINS petition regarding Children. The DCS alleged that

      J.S.’s sibling had sustained physical injuries consistent with physical abuse or

      non-accidental trauma, specifically, rib and tibia fractures, subconjunctival

      hemorrhages, and bruising across the body. Children were removed from

      Mother’s care and she was provided court-appointed counsel.


[3]   On November 13, 2017, the DCS and Mother, by counsel, agreed to a setting of

      the factfinding hearing for January 18, 2018. Mother was appointed new

      counsel and, on January 17, 2018, she filed a motion to continue the factfinding

      hearing. Without providing specific terms, Mother informed the court that she


      Court of Appeals of Indiana | Opinion 18A-JC-2816 | June 18, 2019         Page 2 of 8
      and the DCS had reached an agreement. She requested a non-contested

      factfinding hearing to be conducted thirty to forty-five days in the future. The

      CHINS court conducted the factfinding hearing on February 26, 2018. On

      March 1, 2018, the court adjudicated Children as CHINS and entered

      dispositional orders.


[4]   Eight months later, on October 26, 2018, Mother filed a motion to dismiss the

      CHINS case as to J.S. She argued that dismissal was mandatory because the

      non-contested CHINS factfinding hearing was conducted outside the 120-day

      window of Indiana Code Section 31-34-11-1. The DCS filed an objection to the

      motion to dismiss. On October 29, 2018, the juvenile court conducted a

      permanency hearing, preceded by argument regarding the motion to dismiss.

      Considering Mother’s motion to have been made “after the fact,” Tr. at 8, the

      juvenile court denied the motion to dismiss. Mother now appeals.



                                  Discussion and Decision
[5]   Indiana Code Section 31-34-11-1 provides in relevant part:


              (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



      Court of Appeals of Indiana | Opinion 18A-JC-2816 | June 18, 2019             Page 3 of 8
                   additional sixty (60) days if all parties in the action consent to
                   the additional time.


              (c) * * *


              (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.)


[6]   Mother contends – because the factfinding hearing regarding J.S. was

      conducted more than 120-days after the CHINS petition was filed – she is

      entitled to dismissal of the CHINS case at any stage of the proceedings. In

      essence, Mother claims that the juvenile court made an adjudication absent

      authority and thus its order is void and subject to attack at any time. The DCS

      responds that Mother does not have an absolute, post-adjudication right to

      dismissal. An issue of statutory construction presents a question of law, one

      which we review de novo, owing no deference to the juvenile court’s statutory

      interpretation. Matter of J.R., 98 N.E.3d 652, 654 (Ind. Ct. App. 2018). In

      interpreting a statute, our goal is to determine and give effect to the intent of our

      legislature. State v. Int’l Bus. Mach. Corp., 964 N.E.2d 206, 209 (Ind. 2012). We

      “consider the objects and purposes of the statute as well as the effects and

      repercussions of” our interpretation. Bushong v. Williamson, 790 N.E.2d 467,

      471 (Ind. 2003).




      Court of Appeals of Indiana | Opinion 18A-JC-2816 | June 18, 2019                 Page 4 of 8
[7]   This Court has previously had occasion to decide whether dismissal is

      appropriate under Indiana Code Section 31-34-11-1(d), in the context of

      motions to dismiss made prior to the completion of factfinding and the CHINS

      adjudication. In Matter of J.R., the parents argued that “the juvenile court

      lacked authority to enter a CHINS finding due to the failure to complete

      factfinding within sixty days” and this Court agreed. Id. Concluding that the

      timeframe of Indiana Code Section 31-34-11-1 was mandatory, we stated:

      “there is no longer any reason to believe that the General Assembly intends [the

      statute] to mean anything other than what its clear language indicates, i.e., that

      a factfinding hearing shall be completed within” the statutorily-mandated

      timeframe and failure to do so “is grounds for dismissal.” Id. at 655 (emphasis

      in original). The Court also observed 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.


[8]   Subsequently, in Matter of T.T., 110 N.E.3d 441, 443 (Ind. Ct. App. 2018), a

      panel of this Court considered and rejected the DCS’s arguments that Indiana

      Code Section 31-34-11-1 had not created “a hard and fast deadline” and that a

      parent had waived her objection by agreeing to the continuance:


              Contrary to DCS’s argument, we believe that the General
              Assembly clearly intends for the timeframe set forth in Indiana
              Code section 31-34-11-1 to be a certain deadline. Further, while
              subsection (a) provides that the parties may waive the initial 60-
              day deadline by agreeing to a continuance, subsection (b) does
              not include any such provision. This lack of allowance for an
              additional extension of time indicates that the General Assembly

      Court of Appeals of Indiana | Opinion 18A-JC-2816 | June 18, 2019            Page 5 of 8
                intends to require that a factfinding hearing must 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.


[9]    We agree with prior decisions of this Court that the language of Indiana Code

       Section 31-34-11-1 mandates a fixed deadline for conducting a factfinding

       hearing, and it provides an enforcement mechanism, that of dismissal.1 But

       those decisions involved objections prior to CHINS adjudications and our

       recognition of a 120-day deadline in which to conduct a factfinding hearing

       does not end our inquiry here. We look to whether legislative purposes would

       be served by allowing a post-adjudication motion to dismiss.


[10]   “[T]he purpose of a CHINS adjudication is to protect children, not punish

       parents.” N.L. v. Ind. Dept of Child Servs, 919 N.E.2d 102, 106 (Ind. 2010).

       When legislative intent has been ascertained, “it will prevail over the literal

       import and the strict letter of the statute.” Int’l Bus. Mach. Corp., 964 N.E.2d at

       209. Here, the protection of a child is of paramount importance.




       1
         The DCS suggests that a juvenile court retains discretion in some circumstances to schedule a factfinding
       hearing outside the 120-day timeframe, citing M.M. v. Indiana Dept. of Child Servs., 118 N.E.3d 70 (Ind. Ct.
       App. 2019). In a footnote in M.M., the Court recognized that “CHINS courts are restricted in the ability to
       continue fact-finding hearings” but also observed “it was within the trial court’s authority, as explained in
       this opinion, to continue the fact-finding hearing so that it could consider Father’s request for custody
       modification along with the fact finding.” Id. at 77, n.2. Although a factfinding hearing can be continued
       beyond 60 days, with the consent of all parties, Indiana Code Section 31-34-11-1 does not incorporate an
       exception to the 120-day requirement and a juvenile court is not vested with discretion in that regard.

       Court of Appeals of Indiana | Opinion 18A-JC-2816 | June 18, 2019                                   Page 6 of 8
[11]   Mother seeks a procedural remedy regardless of the merits of the DCS claim

       that J.S. needed services unlikely to be provided without the coercive

       intervention of the court.2 Mother’s unyielding construction of the language of

       subsection (d) – that a dismissal may be obtained post-adjudication – would, as

       a practical matter, provide a substitute for an appeal. Mother did not merely

       acquiesce to a setting of the factfinding hearing outside the statutory

       framework, as in Matter of T.T. Rather, Mother acquiesced in the finding that

       J.S. is a CHINS, she did not appeal that adjudication, and she now seeks to

       collaterally attack it. The statute at issue provides a mechanism to obtain a

       prompt adjudication of a child’s status. We readily reject the contention that

       the timeliness requirement of Indiana Code Section 31-34-11-1 provides

       grounds for setting aside a CHINS adjudication once it has been entered for the

       benefit and protection of a child.


[12]   As a final matter, the DCS urges that “the timeframes in Indiana Code section

       31-34-11-1 should be construed to be in conflict with the Supreme Court’s Trial

       Rule 53.5 ‘good cause’ provision.” Appellee’s Brief at 20. Generally, when a

       statute conflicts with a procedural rule enacted by our supreme court, the

       statute is null and void. Indiana Univ. Health S. Ind. Physicians, Inc. v. Noel, 114




       2
         Indiana Code Section 31-34-1-1 provides that a child is a child in need of services if, before the child
       becomes eighteen years of age, the child’s physical or mental condition is seriously impaired or endangered
       as a result of the inability, refusal, or neglect of the child’s parent, guardian, or custodian to supply necessary
       food, clothing, shelter, medical care, education, or supervision, and the child needs care, treatment, or
       rehabilitation that the child is not receiving and is unlikely to be provided or accepted without the coercive
       intervention of the court.

       Court of Appeals of Indiana | Opinion 18A-JC-2816 | June 18, 2019                                       Page 7 of 8
       N.E.3d 479, 485 (Ind. Ct. App. 2018). Incompatibility exists where both the

       rule and the statute could not apply in a given situation. Id.


[13]   Trial Rule 53.5, pertaining to continuances, provides in relevant part:


               Upon motion, trial may be postponed or continued in the
               discretion of the court, and shall be allowed upon a showing of
               good cause established by affidavit or other evidence.


[14]   The foregoing rule specifies the grounds upon which a continuance may be

       obtained, that is, good cause established by affidavit or other evidence. In some

       circumstances, our Legislature will set the parameters for application of those

       grounds, as it has done here. There is no conflict to support a declaration that

       the statutory provision at issue is null and void.



                                                 Conclusion
[15]   The dismissal sanction of Indiana Code Section 31-34-11-1(d) for failure to

       timely conduct a CHINS factfinding hearing is not a mechanism to collaterally

       attack a CHINS adjudication. The juvenile court did not err in denying

       Mother’s motion to dismiss.


[16]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 18A-JC-2816 | June 18, 2019         Page 8 of 8
