MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Sep 07 2016, 8:42 am
regarded as precedent or cited before any
court except for the purpose of establishing                         CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Daniel Dixon                                             Gregory F. Zoeller
Debra S. Andry                                           Attorney General of Indiana
Lawrence County Public Defender
Agency                                                   Robert J. Henke
Bedford, Indiana                                         Abigail R. Recker
                                                         Deputy Attorneys General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of: J.B., A Child in                       September 7, 2016
Need of Services:                                        Court of Appeals Case No.
                                                         47A01-1604-JC-765
S.M. (Mother),                                           Appeal from the Lawrence Circuit
Appellant-Respondent,                                    Court
                                                         The Honorable Andrea K.
        v.                                               McCord, Judge
                                                         The Honorable John M. Plummer,
The Indiana Department of                                III, Referee
Child Services,                                          Trial Court Cause No.
                                                         47C01-1507-JC-289
Appellee-Petitioner.




Bradford, Judge.


Court of Appeals of Indiana | Memorandum Decision 47A01-1604-JC-765 | September 7, 2016   Page 1 of 8
                                          Case Summary
[1]   On March 9, 2016, J.B. (“Child”) was determined to be a Child in Need of

      Services (“CHINS”) after Appellee-Petitioner, the Department of Child

      Services (“DCS”), received reports that the Child was the victim of abuse and

      neglect. Appellant-Respondent, S.M. (“Mother”), appeals from this

      determination, arguing that the juvenile court erred in denying her motion to

      dismiss the CHINS proceedings. Specifically, Mother claims that the CHINS

      proceedings should have been dismissed, without prejudice, because the

      juvenile court failed to conduct a fact-finding hearing within the statutorily

      allotted time frame. Concluding that the juvenile court did not err in denying

      Mother’s motion to dismiss, we affirm the judgment of the juvenile court.



                            Facts and Procedural History
[2]   DCS became involved with Mother, J.M. (“Step-Father”), and the Child after

      receiving a report that Mother and Step-Father neglected and physically abused

      the Child. The Child was born on February 28, 2006. The Child’s biological

      father reportedly died in March of 2015.


[3]   On July 29, 2015, DCS filed a petition alleging that the Child was a CHINS.

      DCS attached a number of photographs to its petition which documented

      bruising suffered by the Child as a result of the alleged abuse. Also on July 29,

      2015, the trial court conducted an initial hearing after which it formally




      Court of Appeals of Indiana | Memorandum Decision 47A01-1604-JC-765 | September 7, 2016   Page 2 of 8
      removed the Child from Mother’s care and placed the Child with her maternal

      grandmother.


[4]   After a number of continuances, the parties agreed that the fact-finding hearing

      would be held on December 18, 2015. One day before the scheduled fact-

      finding hearing, on December 17, 2015, Mother filed a motion to dismiss the

      CHINS proceedings, without prejudice. On December 18, 2015, Step-Father

      moved for a continuance of the fact-finding hearing. In making these motions,

      both Mother and Step-Father alleged that DCS had failed to respond to certain

      discovery requests. The trial court conducted a hearing on Mother’s and Step-

      Father’s motions, after which it denied Mother’s motion to dismiss and granted

      Step-Father’s request for a continuance. The trial court also set a deadline by

      which DCS was to comply with all remaining discovery requests and scheduled

      the matter for a fact-finding hearing on January 8, 2016.


[5]   The trial court conducted the fact-finding hearing on January 8, 2016, after

      which it adjudicated the Child to be a CHINS. The trial court subsequently

      held a dispositional hearing after which it ordered Mother and Step-Father to

      participate in certain services. This appeal follows.



                                 Discussion and Decision
[6]   On appeal, Mother argues that the juvenile court erred in denying her motion to

      dismiss the underlying CHINS proceedings. Specifically, Mother claims that

      the CHINS proceedings should have been dismissed, without prejudice,


      Court of Appeals of Indiana | Memorandum Decision 47A01-1604-JC-765 | September 7, 2016   Page 3 of 8
      because the juvenile court failed to conduct a fact-finding hearing within the

      time allotted in Indiana Code section 31-34-11-1. For its part, DCS argues that

      the juvenile court did not err in denying Mother’s motion to dismiss.


[7]   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
              fact[-]finding 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 [Indiana Code Chapter] 31-34-9.

              (b) The juvenile court may extend the time to complete a fact[-
              ]finding 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 fact[-]finding 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).


[8]   In Parmeter v. Cass County Department of Child Services, 878 N.E.2d 444, 448 (Ind.

      Ct. App. 2007), we acknowledged that the use of the term “‘shall’ generally

      connotes a mandatory as opposed to a discretionary import.” However, we

      observed that the term “‘shall’ may be construed as directory instead of

      mandatory to prevent the defeat of the legislative intent.” Id. (internal

      quotation omitted). “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
      Court of Appeals of Indiana | Memorandum Decision 47A01-1604-JC-765 | September 7, 2016   Page 4 of 8
      purpose.” Id. In considering whether the term “shall” connoted a mandatory

      or directory import, we noted that Indiana Code section 31-34-11-1 used the

      term “shall” when setting a deadline for holding a fact-finding hearing, did not

      specify any adverse consequence for failing to comply with the time limit, and

      expressly provides for the extension of the time limit when all parties consent.

      Id. We also noted 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....’” Id. (quoting Ind. Code

      § 31-10-2-1(4), (6)). We further noted that “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[.]” Id. For these reasons, we concluded that the term

      “shall,” as used in Indiana Code Section Indiana Code section 31-34-11-1, is

      directory and not mandatory. Id. In reaching this conclusion we stated that

      “[i]f 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. One possible absurd and unjust

      result could foreseeably include putting children at considerable risk if the

      allegations alleged in the CHINS petition, such as the ones in this case, are

      serious and meritorious.


[9]   In the instant matter, the parties, including Mother, agreed that the fact-finding

      hearing would be conducted on December 18, 2015, or 142 days after DCS filed


      Court of Appeals of Indiana | Memorandum Decision 47A01-1604-JC-765 | September 7, 2016   Page 5 of 8
       the underlying CHINS petition. On December 17, 2015, one day before the

       scheduled fact-finding hearing, Mother filed a motion to dismiss the CHINS

       action without prejudice. In this motion, Mother claimed that (1) DCS had

       failed to respond to certain discovery requests; (2) as a result of DCS’s failure,

       her counsel could not adequately prepare for the fact-finding hearing; and (3)

       any further continuance of the fact-finding would bring the matter outside the

       time limits set forth in Indiana Code section 31-34-11-1. Mother’s motion

       acknowledged that the agreed upon date of the scheduled fact-finding hearing

       was 142 days after the date that the underlying CHINS petition was filed. It did

       not, however, explain why a further delay outside of the timeframe set forth in

       Indiana Code section 31-34-11-1 would warrant dismissal of the CHINS

       proceedings when the agreed upon date of December 18, 2015, did not.


[10]   In considering Mother’s motion, the trial court indicated that it seemed that in

       seeking dismissal of the underlying CHINS proceedings, Mother was trying to

       “un-waive a waiver.” Tr. p. 41. The trial court went on to explain that it

       believed that Mother “waived [the] remedy of dismissal” by agreeing to a date

       for the fact-finding hearing that was not within the time frame set forth in

       Indiana Code section 31-34-11-1 and that she was “now … asking to go back

       and say, Okay, [I’m] not waiving that now.” Tr. p. 41. In finding that Mother

       could not “un-waive” her waiver, the trial court stated “[b]ut once it’s waived,

       it’s waived.” Tr. p. 41. The trial court also noted that any issues with discovery

       should have been addressed pursuant to Indiana Trial Rule 37, and, given the

       serious nature of the allegations of abuse, found that continued removal from


       Court of Appeals of Indiana | Memorandum Decision 47A01-1604-JC-765 | September 7, 2016   Page 6 of 8
       Mother’s care pending resolution of the CHINS proceedings was in the Child’s

       best interest. The trial court denied Mother’s motion to dismiss, set a deadline

       by which DCS was required to comply with any remaining discovery requests,

       and scheduled the fact-finding hearing for January 8, 2016, an additional delay

       of only three weeks.


[11]   On appeal, Mother argues that she suffered harm and her parental rights were

       put at risk as a result of the trial court’s denial of her motion to dismiss.

       Specifically, Mother claims that “the trial court failed to properly balance the

       interests of the State with [her] interests.” Appellant’s Br. p. 13. Mother asserts

       that the trial court’s focus on the potential harm to the Child if the CHINS

       proceedings were dismissed was misplaced because DCS could have

       immediately re-filed the CHINS petition and requested immediate detention of

       the Child. Mother also asserts that the additional delay in conducting the fact-

       finding hearing put her at risk of having a reduced amount of time to complete

       any ordered services before DCS could seek the termination of her parental

       rights.


[12]   Upon review, we conclude that Mother has failed to demonstrate both that the

       trial court erred in considering the Child’s best interests when ruling on

       Mother’s motion and that she was prejudiced by the additional three-week

       delay in the CHINS proceedings. In fact, we note that if the trial court had

       granted Mother’s motion to dismiss, given the serious nature of the abuse

       allegations, DCS would undoubtedly have immediately refiled the CHINS

       proceedings, leading to an even longer delay in services being offered to the

       Court of Appeals of Indiana | Memorandum Decision 47A01-1604-JC-765 | September 7, 2016   Page 7 of 8
       parties. As such, any future reunification of the Child with her Mother would

       have likewise been delayed as such reunification would not have occurred prior

       to Mother completing certain services. In addition, Mother has pointed to

       nothing in the record that would suggest that DCS would not take the

       additional three-week delay into consideration before potentially filing any

       subsequent motions that might affect Mother’s parental rights.


[13]   Mother herself agreed to waive the time limits set forth in Indiana Code section

       31-34-11-1 when she agreed to the December 18, 2015 fact-finding hearing date.

       The additional three-week delay before the hearing was ultimately conducted

       seems rather inconsequential when compared to the likely much longer delay

       which would have occurred before a fact-finding hearing could be conducted if

       the matter was dismissed and then re-filed. As such, we conclude that requiring

       the trial court to have granted Mother’s motion to dismiss would have led to an

       absurd and unjust result. The trial court, therefore, did not err in denying

       Mother’s motion to dismiss.


[14]   The judgment of the trial court is affirmed.


       Pyle, J., and Altice, J., concur.




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