                                                                             FILED
                                                                       Oct 02 2017, 6:10 am

                                                                             CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Andrew W. Foster                                           Curtis T. Hill, Jr.
Wagoner, Ayer, Hargis & Rudisill, LLC                      Attorney General of Indiana
Rockport, Indiana                                          James D. Boyer
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Termination                           October 2, 2017
of the Parent-Child Relationship                           Court of Appeals Case No.
of N.C. (Minor Child),                                     74A05-1705-JT-1105
and                                                        Appeal from the Spencer Circuit
                                                           Court
C.G.G. (Father),
                                                           The Honorable William E.
Appellant-Respondent,                                      Weikert, Senior Judge

        v.                                                 Trial Court Cause No.
                                                           74C01-1608-JT-224

The Indiana Department of
Child Services,
Appellee-Petitioner.



Bailey, Judge.




Court of Appeals of Indiana | Opinion 74A05-1705-JT-1105 | October 2, 2017                      Page 1 of 8
                                                Case Summary
[1]   C.G.G. (“Father”) appeals the denial of his motion to dismiss a petition by the

      Indiana Department of Child Services, Spencer County Division (“the DCS”),

      to terminate Father’s parental rights to N.C. (“Child”). Father presents the sole

      issue of whether he was entitled to dismissal of the termination petition because

      the fact-finding hearing was not timely conducted pursuant to Indiana Code

      Section 31-35-2-6. We affirm.



                                 Facts and Procedural History
[2]   On March 21, 2015, Father and F.C. (“Mother”) were arrested on

      methamphetamine possession charges and Child was removed from their care.

      On June 2, 2015, Child was adjudicated a Child in Need of Services

      (“CHINS”). The parents were ordered to participate in reunification services;

      however, Father remained incarcerated in Kentucky awaiting a trial on federal

      drug charges and was unable to participate in services.


[3]   On August 11, 2016, the DCS filed a petition to terminate Father’s and

      Mother’s parental rights.1 A fact-finding hearing was conducted on March 21,

      2017. On April 18, 2017, the trial court entered its findings of fact, conclusions

      thereon, and order terminating Father’s parental rights. He now appeals.




      1
          Mother voluntarily relinquished her parental rights and is not an active party to this appeal.


      Court of Appeals of Indiana | Opinion 74A05-1705-JT-1105 | October 2, 2017                           Page 2 of 8
                                   Discussion and Decision
[4]   Father does not challenge the factual findings of the trial court or its

      conclusions thereon. Father solely challenges the denial of his motion to

      dismiss the termination petition for untimeliness of the fact-finding hearing.


[5]   Indiana Code Section 31-35-2-6 sets forth the timeline for conducting fact-

      finding hearings in parental rights termination proceedings, when a party

      requests a hearing:2


               (a) Except when a hearing is required after June 30, 1999, under
                   section 4.5 of this chapter, the person filing the petition shall
                   request the court to set the petition for a hearing. Whenever a
                   hearing is requested under this chapter, the court shall:


                   (1) commence a hearing on the petition not more than ninety
                       (90) days after a petition filed under this chapter; and


                   (2) complete a hearing on the petition not more than one
                       hundred eighty (180) days after a petition is filed under
                       this chapter.


               (b) If a hearing is not held within the time set forth in subsection
                   (a), upon filing a motion with the court by a party, the court




      2
        A panel of this Court has concluded that the statutory ninety-day requirement for commencement of a fact-
      finding hearing is triggered by a specific request for a fact-finding hearing made by a party. In re L.V.N., 799
      N.E.2d 63, 67 (Ind. Ct. App. 2003). We observe, however, that subsection (a)(1) contemplates a hearing
      “not more than ninety days after a petition [is] filed[.]” I.C. § 31-35-2-6(a)(1).

      Court of Appeals of Indiana | Opinion 74A05-1705-JT-1105 | October 2, 2017                           Page 3 of 8
                   shall dismiss the petition to terminate the parent-child
                   relationship without prejudice.


[6]   Here, the fact-finding hearing was not commenced within 90 days of the

      hearing request or completed within 180 days after the filing of the petition. It

      was conducted 222 days after the filing of the petition to terminate parental

      rights, and Father asserts that he is entitled to dismissal of the petition on this

      basis.


[7]   The interpretation of a statute presents a question of law, which this Court

      reviews de novo. In re Adoption of M.L., 973 N.E.2d 1216, 1223 (Ind. Ct. App.

      2012). In construing a statute, our “primary goal is to determine and effectuate

      the legislative intent.” Id. at 1223. We give words and phrases their plain and

      ordinary meaning. Id.


[8]   Subsection (b) of Indiana Code Section 31-35-2-6 addresses non-compliance

      with the statutory deadlines, providing in relevant part: “upon filing a motion

      with the court by a party, the court shall dismiss the petition.” The plain

      language contemplates the filing of a motion with the court. Father filed no

      written motion; rather, he orally moved for dismissal at the outset of the fact-

      finding hearing.


[9]   Moreover, Father had acquiesced to the fact-finding hearing date. At a hearing

      conducted on December 9, 2016, Mother requested a continuance and a

      discussion ensued as to available court dates. The court reporter suggested

      March 21, 2017, and Father’s counsel responded: “That sounds good.” (Tr.

      Court of Appeals of Indiana | Opinion 74A05-1705-JT-1105 | October 2, 2017   Page 4 of 8
       Vol. II, pg. 14.) Father’s counsel then inquired about the specific length of the

       fact-finding hearing, whether all day or one-half day. In general, “waiver”

       connotes an “intentional relinquishment or abandonment of a known right.”

       Plank v. Cmty. Hospitals of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013). We agree

       with the DCS that Father waived his right to challenge the setting of that fact-

       finding hearing date, although it fell outside the statutory 180 days. As such,

       Father can be afforded no relief in this appeal.


[10]   Notwithstanding waiver on Father’s part, the DCS asks that we determine

       whether the word “shall,” preceding “dismiss” in subsection (b) of Indiana

       Code Section 31-35-2-6, is “directory” or “mandatory.” Appellee’s Brief at 14.

       Arguing that “shall” must be considered “directory” in the termination context

       to avoid “absurd results,” the DCS contends that CHINS statutes utilizing

       “shall” are analogous. The DCS relies upon Parmeter v. Cass Cty. Dep’t of Child

       Servs., 878 N.E.2d 444 (Ind. Ct. App. 2007).


[11]   In Parmeter, a mother argued that the trial court was without jurisdiction over

       the CHINS cases involving her children because of non-compliance with

       Indiana Code Section 31-34-11-1, directing that the juvenile court “shall”

       complete a factfinding hearing within sixty days of the filing of a CHINS

       petition, and Indiana Code Section 31-34-19-1, directing that the juvenile court

       “shall” complete a disposition hearing within 30 days after the finding that a

       child is a CHINS. 878 N.E.2d at 447. The Parmeter Court observed that

       neither deadline was met and found it necessary to determine whether “shall”

       in the foregoing statutes was “directory” or “mandatory.” Id.

       Court of Appeals of Indiana | Opinion 74A05-1705-JT-1105 | October 2, 2017   Page 5 of 8
[12]   The Court acknowledged that, generally, the term “shall” appearing in a statute

       connotes a mandatory, as opposed to a discretionary, import. Id. at 448.

       However, “shall” can be construed as directory when necessary “to prevent the

       defeat of the legislative intent.” Id. The Court looked to the purpose of the

       CHINS statutes, that is, assisting parents to fulfill their obligations, and

       concluded that routine dismissals would thwart that purpose. Id. Ultimately,

       the Parmeter Court found the use of “shall” to be directory, and held that the

       CHINS court did not lose jurisdiction. Id. In reaching its conclusion, the Court

       observed: “If we were to hold otherwise, CHINS cases would have to be

       dismissed where a continuance beyond the statutory time frame was necessary

       and legitimate, an absurd and unjust result.” Id.


[13]   We decline the DCS’s invitation to extend the statutory construction holding of

       Parmeter to this termination case for several reasons. First, Father presented no

       reviewable issue. See Plank, 981 N.E.2d at 53 (“Declining to review an issue

       not properly preserved for review is essentially a cardinal principal of sound

       judicial administration.”). Thus, disposition of this case does not rest upon

       whether the word “shall” in Indiana Code Section 31-35-2-6 is mandatory or

       directory. Second, Parmeter involved a separate, although interlocking,

       statutory scheme.3 The objective of CHINS statutes is assisting in the

       fulfillment of parental obligations, see Parmeter, 878 N.E.2d at 448, while




       3
         See In re L.V.N., 799 N.E.2d at 67 (recognizing that our legislature has enacted an interlocking statutory
       scheme governing CHINS proceedings and the involuntary termination of parental rights proceedings).

       Court of Appeals of Indiana | Opinion 74A05-1705-JT-1105 | October 2, 2017                           Page 6 of 8
       termination statutes provide a framework for ending those parental obligations.

       Finally, and critically, the statutes examined in Parmeter did not include a

       specific enforcement mechanism for non-compliance, as does subsection (b) of

       Indiana Code Section 31-35-2-6.


[14]   The DCS acknowledges the enactment of subsection (b), but points out that

       dismissal is to be “without prejudice,” and thus many dismissed cases are likely

       to be re-filed. The DCS asserts that this would “be simply a waste of resources,

       time, and effort – resulting in absurdity, hardship, or injustice and public

       inconvenience.” Appellee’s Brief at 16. It is not within the province of this

       Court to construe a statute simply to avoid repetition of filings. We defer to our

       Legislature, the entity best suited to balancing competing interests and

       allocating limited judicial resources while giving due regard to parental rights,

       which are of constitutional dimension. Bester v. Lake Cty. Office of Family &

       Children, 839 N.E.2d 143, 147 (Ind. 2005). Like Father, the DCS cannot be

       afforded the relief it seeks in this appeal.



                                                 Conclusion
[15]   Having acquiesced to the setting of a fact-finding hearing date outside the

       statutory parameters, Father has preserved no issue for appellate review

       regarding the application of Indiana Code Section 31-35-2-6. We decline the

       invitation of the DCS to construe the word “shall” appearing therein as

       “directory,” as opposed to “mandatory,” language.



       Court of Appeals of Indiana | Opinion 74A05-1705-JT-1105 | October 2, 2017   Page 7 of 8
[16]   Affirmed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 74A05-1705-JT-1105 | October 2, 2017   Page 8 of 8
