                                                                            FILED
                                                                        Jul 31 2020, 8:34 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                       Curtis T. Hill, Jr.
Wieneke Law Office LLC                                      Attorney General of Indiana
Brooklyn, Indiana                                           Monika Prekopa Talbot
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

In the Matter of: E.T. (Minor                               July 31, 2020
Child), a Child in Need of Services;                        Court of Appeals Case No.
A.T. (Father),                                              20A-JC-312
Appellant-Respondent,                                       Appeal from the Vermillion Circuit
                                                            Court
             v.                                             The Honorable Jill Wesch, Judge
                                                            Trial Court Cause No.
The Indiana Department of                                   83C01-1902-JC-2
Child
Services,
Appellee-Petitioner.


Pyle, Judge.




Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020                                Page 1 of 15
                                            Statement of the Case

[1]   A.T. (“Father”) appeals the trial court’s determination that his son, E.T.

      (“Child”), is a Child in Need of Services (“CHINS”) based on a petition filed by

      the Department of Child Services (“DCS”). Father argues that trial court: (1)

      committed fundamental error when it held his factfinding and dispositional

      hearings outside the statutory timeframes; and (2) violated his due process

      rights when it determined that Child was a CHINS in a separate proceeding

      involving the Child’s mother (“Mother”) prior to giving him an opportunity to

      be heard.1 Concluding that: (1) Father has failed to establish fundamental error

      regarding his statutory compliance argument; and (2) his due process rights

      were not violated, we affirm the CHINS determination.


[2]   We affirm.


                                                           Issues


                 1. Whether the trial court committed fundamental error by conducting
                    Father’s factfinding and dispositional hearings outside of the statutory
                    timeframes.

                 2. Whether the trial court violated Father’s due process rights.

                                                           Facts




      1
          Mother is not a party to this appeal. Facts relating to Mother will be included where appropriate.


      Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020                                    Page 2 of 15
[3]   Mother and Father are the parents of Child, who was born in September 2018.

      On January 9, 2019, DCS received a report alleging that a domestic violence

      incident had occurred the previous day between Mother and Father

      (collectively “Parents”) in front of Child. The following day, Family Case

      Manager Kilee Myers (“FCM Myers”) visited Mother to investigate the

      allegations. FCM Myers observed that Mother had “a black eye, busted lip[,]

      and large bruises on her arms.” (App. Vol. 2 at 18). Child was not

      immediately removed, rather DCS created a safety plan with Mother. Father,

      who was arrested as result of the incident, was charged with Level 6 felony

      domestic battery and Class B misdemeanor false informing.


[4]   On February 5, 2019, following the report and investigation of domestic

      violence between Parents, the trial court authorized DCS to file a petition

      alleging that Child was a CHINS. Specifically, DCS alleged that: (1) Child

      was a victim of neglect due to exposure to domestic violence; (2) Parents had

      significant alcohol abuse issues; and (3) Father remained incarcerated due to

      the domestic violence incident. Child was initially placed with Father’s

      brother, but, after a few weeks, Father’s brother requested that DCS remove

      Child from his home. Child was subsequently placed in a licensed foster home.


[5]   Following the initial hearing, DCS filed a motion to have separate factfinding

      hearings for each parent because “Mother ha[d] secured a restraining order

      against Father and [was] fearful of being around him.” (App. Vol. 2 at 39).

      The trial court granted the motion and scheduled Father’s factfinding hearing

      for March 26, 2019 and Mother’s for April 2, 2019.

      Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020        Page 3 of 15
[6]    On March 25, 2019, Father’s counsel filed a motion to continue the factfinding

       hearing. The motion stated that Father “waive[d] the 60[-]day requirement for

       [factfinding] hearing.” (Supp. App. at 2). The trial court granted the motion

       and rescheduled Father’s factfinding hearing for April 30, 2019.


[7]    In early April 2019, as a result of the January incident, Father pled guilty to an

       added charge of Class B misdemeanor disorderly conduct in exchange for the

       State’s dismissal of the original charges. Later that month, Father was arrested

       again and charged with committing Class A misdemeanor battery against

       Mother. Father pled guilty as charged.


[8]    Meanwhile, the trial court held Mother’s April factfinding hearing. At the

       hearing, she admitted that Child was a CHINS. The trial court adjudicated

       Child a CHINS and held a dispositional hearing on April 23, 2019. Thereafter,

       the trial court issued a dispositional order regarding Mother.


[9]    On April 29, 2019, the day before Father’s factfinding hearing, Father’s counsel

       filed another motion to continue the factfinding hearing. This motion stated

       that Father “waive[d] the statutory time requirement for [factfinding] hearing.”

       (Supp. App. at 5). The trial court granted the motion and rescheduled the

       factfinding hearing for June 25, 2019.


[10]   At the June 25 hearing, Father was not present, and his attorney, who had

       moved out of state without withdrawing from the case, also was not present.

       The trial court then appointed a new attorney for Father. In its order, the trial

       court stated that “to ensure [that counsel] has time to speak to his client, the

       Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020          Page 4 of 15
       court hereby continues this hearing to August 6, 2019[.]” (App. Vol. 2 at 83).

       Thereafter, the trial court, on its own motion, continued the August 6 hearing

       due to the unavailability of the judge and rescheduled the factfinding hearing

       for August 27, 2019. Father’s counsel did not object. At the August 27

       hearing, the trial court, by agreement of the parties, scheduled a status hearing

       for September 23, 2019. At the status hearing, the trial court scheduled Father’s

       factfinding hearing for October 2019.


[11]   On October 2, 2019, the trial court held Father’s factfinding hearing. Father

       did not object to the date of the factfinding hearing or allege that it was outside

       the statutory timeframe. At the outset of the hearing, DCS requested that the

       trial court take judicial notice of Mother’s admission that Child was a CHINS.

       In response, Father’s counsel stated that “mother’s admission is not father’s

       admission and just because a . . . child may be a CHINS as to mother does not

       mean that the child is a CHINS as to father as well.” (Tr. Vol. 2 at 43-44). The

       trial court granted DCS’ request and took judicial notice of Mother’s admission.


[12]   During the hearing, Family Case Manager Megan Butler (“FCM Butler”)

       testified that she had been the case manager for Child since February 2019. She

       explained that, in January 2019, DCS had received a report regarding domestic

       violence in front of Child and alcohol abuse by both parents. She further

       explained that after Father had been released from jail in February 2019, he had

       participated in services, which included home-based case management,

       supervised visits, and random drug screens. FCM Butler further explained that

       Father had engaged in services until he was arrested in April 2019, and that he

       Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020           Page 5 of 15
       had failed to re-engage in services following his release from jail in July 2019.

       FCM Butler opined that it was not in Child’s best interest to be in Father’s care,

       explaining that:


                [t]here has been such a significant history with him and [Mother],
                the lack of [Father] acknowledging that he has been any part of the
                domestic violence with [Mother]. He takes no responsibility for it
                and blames [Mother] for it. [Father] has also told me in the past
                that he does have an alcohol problem himself and he had talked
                about completing services because of that but has not done so.
                [Father] isn’t steadily employed at this moment so I – I would be
                concerned for [Child] to go back to [Father] right now.

       (Tr. Vol. 2 at 73).


[13]   Father also testified at the hearing. He admitted that he had been arrested in

       January 2019 due to the domestic violence incident with Mother and that he

       had pled guilty to Class B misdemeanor disorderly conduct. He also admitted

       that he had been arrested again in April 2019 for committing Class A

       misdemeanor battery against Mother and had pled guilty to the charged

       offense. Father also detailed his criminal history, which included previous

       convictions for battery and criminal confinement against Mother. However,

       Father maintained that he was not a violent person.


[14]   On November 8, 2019, the trial court issued another order adjudicating Child to

       be a CHINS. Thereafter, following a request by DCS, the trial court set

       Father’s dispositional hearing for January 27, 2020, which was the same date as

       a previously scheduled permanency hearing. Father did not object to the

       scheduled date of the dispositional hearing. During the January 2020 combined


       Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020          Page 6 of 15
       hearing, Father did not object to the date of the hearing or allege that it was

       outside the statutory timeframe. At the hearing, DCS requested that Child’s

       permanency plan as to both parents change to a termination of parental rights.

       However, the trial court ordered that the permanency plan change to

       termination as to Mother only. Following the dispositional hearing, the trial

       court issued a dispositional order that required Father to: (1) complete a

       domestic violence assessment and follow all recommendations; (2) complete

       Fatherhood Engagement; (3) participate in supervised visitations; (4) submit to

       random drug screens; and (5) not commit any acts of domestic violence. Father

       now appeals.


                                                       Decision


[15]   Father raises two issues on appeal, arguing that the trial court: (1) committed

       fundamental error when it held his factfinding and disposition hearings outside

       the statutory timeframes; and (2) violated his due process rights by adjudicating

       Child a CHINS in a separate proceeding involving Mother without giving him

       an opportunity to be heard. We will address each argument in turn.


       1. Factfinding and Dispositional Hearings


[16]   Father argues that the trial court committed fundamental error when it failed to

       complete his factfinding and dispositional hearings within the timeframes set

       forth by INDIANA CODE §§ 31-34-11-1 and 31-34-19-1. In response, DCS

       argues that the fundamental error doctrine is not applicable because Father

       received a fair hearing and has failed to show substantial harm.

       Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020          Page 7 of 15
[17]   Father’s assertion requires that we examine the statutes setting forth the

       timeframes for holding factfinding and dispositional hearings. INDIANA CODE

       § 31-34-11-1, which governs factfinding hearings, provides:


                (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
                additional sixty (60) days if all parties in the action consent to the
                additional time.

                                                          ***


                (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.

       IND. CODE § 31-34-11-1. INDIANA CODE § 31-34-19-1 governs dispositional

       hearings and provides, in relevant part:


                (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 . . . .

                (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.

       IND. CODE § 31-34-19-1.

[18]   Matters of statutory interpretation present pure questions of law and are thus

       reviewed de novo. Matter of M.S., 140 N.E.3d 279, 282 (Ind. 2020). We presume

       that the General Assembly intended for the statutory language to be applied in a

       Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020              Page 8 of 15
       logical manner consistent with the statute’s underlying policy and goals. Id.

       CHINS proceedings are civil in nature; they are also governed by significant

       procedural and substantive statutory provisions outlining their purposes and

       procedures. Id. at 284. However, all parties to a CHINS proceeding are subject

       to the Indiana Rules of Trial Procedure, and a trial court has discretion to

       enlarge the 120-day deadline if good cause is shown. Id. See also I.C. § 31-34-9-

       7.


[19]   Here, the trial court held Father’s factfinding and dispositional hearings outside

       of the statutory timeframes listed in INDIANA CODE §§ 31-34-11-1 and 31-34-19-

       1. However, both statutes provide a mechanism for an aggrieved party if a

       hearing is not held within the timeframes – a motion to dismiss. See In re J.S.,

       133 N.E.3d 707, 713 (Ind. Ct. App. 2019) (explaining that although the CHINS

       statutory scheme provides mandatory deadlines and includes enforcement

       mechanisms, a party must preserve the right of expediency by filing a written

       motion to dismiss before the merits of a petition are litigated). Father did not

       file a motion with the trial court under either INDIANA CODE § 31-34-11-1(d) or

       INDIANA CODE § 31-34-19-1(b). Because Father failed to file motions to

       dismiss, his argument is waived. See Matter of N.C., 83 N.E.3d 1265, 1267 (Ind.

       Ct. App. 2017) (holding that the father “waived his right to challenge the setting

       of the [parental termination] factfinding hearing date, although it fell outside

       the statutory 180 days[]”). See also Plank v. Cmty. Hospitals of Ind., Inc., 981

       N.E.2d 49, 53 (Ind. 2013) (explaining that “waiver” connotes an “intentional

       relinquishment or abandonment of a known right.”).


       Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020             Page 9 of 15
[20]   Father seeks to avoid waiver by asserting that the trial court’s “failure[s] to

       adhere to any of the statutory deadlines” in this case “were so egregious [that]

       they amounted to fundamental error.” (Father’s Br. 8). We disagree. The

       fundamental error doctrine is extremely narrow and “‘available only when the

       record reveals a clearly blatant violation of basic elementary principles, where

       the harm or potential for harm cannot be denied, and which violation is so

       prejudicial to the rights of the defendant as to make a fair trial impossible.’”

       Matter of Eq.W, 124 N.E.3d 1201, 1214-1215 (quoting Jewell v. State, 887 N.E.2d

       939, 942 (Ind. 2008)). For an appellate court to overturn a trial court ruling

       based on fundamental error, “‘the error [must have been] so egregious and

       abhorrent to fundamental due process that the trial judge should or should not

       have acted, irrespective of the parties’ failure to object or otherwise preserve the

       error for appeal.’” In re G.P., 4 N.E.3d 1158, 1167 n.8 (Ind. 2013) (quoting

       Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012)).


[21]   Here, Father has failed to identify the harm that made a fair hearing impossible.

       As discussed more fully below, Father had both factfinding and dispositional

       hearings, during which he was represented by counsel, and was provided with a

       meaningful opportunity to contest the CHINS allegation. Furthermore,

       Father’s argument that DCS would have the statutory authority to terminate his

       parental rights soon after his dispositional hearing is unpersuasive. As noted by

       Father, although DCS requested that Child’s permanency plan as to both

       parents change to termination, the trial court ordered the plan changed to

       termination as to Mother only. This undercuts Father’s argument that the


       Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020          Page 10 of 15
       delays impeded his ability to bond with Child and provided him a small

       window to prove his parental fitness. Our review of the record reveals that at

       Father’s dispositional hearing, the trial court scheduled a review hearing for

       April 2020, thereby giving Father time to bond with Child and prove his

       parental fitness. Therefore, under the facts of this case, we conclude that the

       trial court’s failure to complete the factfinding and dispositional hearings within

       the statutory timeframes did not constitute fundamental error.


       2. Due Process Rights


[22]   Father next argues that his due process rights were violated because the trial

       court adjudicated Child a CHINS before Father’s factfinding hearing had

       occurred. Father’s argument requires that we address the nature and focus of a

       CHINS determination. A CHINS proceeding focuses on the best interest of the

       child, not the “guilt or innocence” of either parent. In re N.E., 919 N.E.2d 102,

       106 (Ind. 2010). Because a CHINS determination regards the status of the

       child, a separate analysis as to each parent is not required in the CHINS

       determination stage. Id. A CHINS adjudication in no way challenges the

       general competency of parents to continue relationships with their children. Id.

       at 105. A CHINS adjudication is a civil action. Id. Therefore, DCS must

       prove by a preponderance of the evidence that the child is a CHINS as defined

       by the juvenile code. Id.


[23]   It is well settled that “[t]he Due Process Clause of the United States

       Constitution prohibits state action that deprives a person of life, liberty or


       Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020          Page 11 of 15
       property without a fair proceeding.” Lawson v. Marion Cty. Office of Family &

       Children, 835 N.E.2d 577, 579 (Ind. Ct. App. 2005). Due process is essentially

       “the opportunity to be heard at a meaningful time and in a meaningful

       manner.” Matthews v. Eldridge, 424 U.S. 319, 333 (1976). We recognize that,

       “although due process is not dependent on the underlying facts of the particular

       case, it is nevertheless ‘flexible and calls for such procedural protections as the

       particular situation demands.’” Lawson, 835 N.E.2d at 580 (quoting Thompson

       v. Clark Cty. Div. of Family & Children, 791 N.E.2d 792, 795 (Ind. Ct. App. 2003),

       trans. denied). Furthermore, where, as here, “one parent wishes to admit and

       one parent wishes to deny [that] the child is in need of services, due process

       requires the juvenile court to conduct a fact-finding hearing.” In re T.N., 963

       N.E.2d 467, 469 (Ind. 2012). “[D]uring a CHINS proceeding, a parent is

       entitled to (1) cross-examine witnesses, (2) obtain witnesses or tangible evidence

       by compulsory process, and (3) introduce evidence on his behalf.” In re V.C.,

       967 N.E.2d 50, 52-53 (Ind. Ct. App. 2012) (citing INDIANA CODE § 31-32-2-

       3(b)), trans. denied.


[24]   Father asserts that “[t]he court failed to provide [him] with a meaningful

       opportunity to be heard[]” because the trial court had earlier determined that

       Child was a CHINS in a proceeding involving Mother. (Father’s Br. 16). In so

       arguing, Father directs us to In re S.A., 15 N.E.3d 602 (Ind. Ct. App. 2014), aff’d

       on reh’g, 27 N.E.3d 287 (Ind. Ct. App. 2015), trans. denied. In that case, DCS

       removed a child from the mother after a report of child neglect stemming from

       the mother’s drug use. The child’s father, who had been absent from the child’s

       Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020          Page 12 of 15
       life while serving in the U.S. Navy, was notified of the CHINS proceedings.

       Thereafter, the father requested counsel, denied the CHINS allegations, and

       sought to establish paternity. Prior to the establishment of paternity, the trial

       court adjudicated the child to be a CHINS. Following the establishment of

       paternity, the father requested a factfinding hearing, moved to Indiana, and had

       daily supervised visitation with the child. After the father’s factfinding hearing,

       the trial court continued the CHINS adjudication.


[25]   The father appealed and this Court reversed the CHINS adjudication because

       DCS had failed to establish that the father was not likely to meet his child’s

       needs absent coercive intervention of the court. However, the S.A. Court sua

       sponte addressed the due process concerns that the child had been adjudicated a

       CHINS as to the father before the father’s factfinding hearing had occurred.

       This Court held that the trial court had incorrectly “determined the [c]hild’s

       CHINS status based solely on [the] [m]other’s admission[,]” “notwithstanding

       the fact that [the] [f]ather was involved in the case and had denied the

       allegations in the CHINS petition.” S.A., 15 N.E.3d at 609. This Court held

       that the trial court “deprived [the] [f]ather of a meaningful opportunity to be

       heard” when it adjudicated the child a CHINS prior to the father’s factfinding

       hearing. Id. (Emphasis in original). The S.A. Court reasoned that although a

       separate analysis as to each parent is not required, “a separate analysis ‘is

       sometimes necessary’ if the allegations have been made against both parents,

       and where one parent wishes to admit that the child is a CHINS while the other

       denies it.” Id. (quoting In re K.D., 962 N.E.2d 1249, 1256 (Ind. 2012)).


       Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020           Page 13 of 15
[26]   On rehearing, the S.A. Court clarified that “when the [CHINS] adjudication

       can involve both parents at the same time, it should involve both parents at the

       same time so there is one adjudication as to all facts pertaining to the entire

       mater.” In re S.A., 27 N.E.3d at 292. This Court further stated that:


                If multiple hearings are unavoidable, then the trial court should, if
                at all possible, refrain from adjudicating a child a CHINS until
                evidence has been heard from both parents. And if an
                adjudication is unavoidable before evidence has been heard from
                the second parent, then the trial court must give meaningful
                consideration to the evidence by the second parent in determining
                whether the child remains a CHINS.

       Id. at 292-93.


[27]   That facts of the present case are distinguishable from S.A. Here, the CHINS

       petition was based on a domestic violence incident between Father and Mother

       that had occurred in front of Child. As a result of Mother’s protective order

       and fear of Father, DCS filed a motion for separate factfinding hearings, which

       the trial court granted. Thereafter, Mother admitted that Child was a CHINS,

       and the trial court held a dispositional hearing and ordered Mother to complete

       services. Thus, separate hearings were unavoidable because both parents could

       not be present at the same factfinding hearing.


[28]   Moreover, unlike in S.A., our review of the record reveals that, despite Mother’s

       admission, the trial court in this case did not adjudicate Child to be a CHINS

       based solely on this admission, as suggested by Father. Father had his own

       factfinding hearing, wherein he was provided the opportunity to cross-examine

       FCM Butler and introduce evidence. See V.C., 967 N.E.2d at 52-53. Indeed,

       Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020           Page 14 of 15
       Father’s factfinding hearing yielded a CHINS adjudication based on the

       evidence presented, which included Father’s: criminal history of violence

       towards Mother and the resulting injuries she suffered; failure to reengage in

       services following incarceration for battery against Mother; failure to visit

       Child; and lack of employment. Thus, the trial court gave “meaningful

       consideration to the evidence provided” by Father. S.A., 27 N.E.3d at 293.


[29]   In sum, Father received the due process to which he was entitled. Father had

       the opportunity to be heard at a meaningful time and in a meaningful manner.

       See Lawson, 835 N.E.2d at 580. Because Father had the opportunity to be

       heard, the trial court did not violate Father’s due process rights. Therefore, we

       affirm the trial court’s judgment.


[30]   Affirmed.


       Bradford, C.J., and Baker, J., concur.




       Court of Appeals of Indiana | Opinion 20A-JC-312 | July 31, 2020         Page 15 of 15
