COA affirms termination of parental rights, declines request to interpret phrase in statute

The Indiana Court of Appeals has affirmed the termination of a father’s parental rights, even though the fact-finding hearing was held outside the statutory time frame. The judges also declined to interpret whether the applicable statute contains directory or mandatory language.

In March 2015, C.G.G. and F.C., the parents of N.C., were arrested on methamphetamine charges, resulting in their child being removed from their care. N.C. was then adjudicated as a child in need of services, and the parents were ordered to participate in reunification services. C.G.G., the father, however, was unable to participate in those services due to his incarceration in Kentucky.

The Department of Child Services moved to terminate both parents’ parental rights on Aug. 11, 2016, which the Spencer Circuit Court agreed to do regarding C.G.G. after a March 21, 2017, fact-finding hearing. F.C. voluntarily relinquished her rights.

The father appealed, but the Indiana Court of Appeals affirmed the termination of parental rights Monday in the case of In the Matter of the Termination of the Parent-Child Relationship of N.C. (Minor Child) and C.G.G. (Father) v. The Indiana Department of Child Services, 74A05-1705-JT-1105. On appeal, C.G.G. challenged the court’s denial of his motion to dismiss the termination petition because the fact-finding hearing was not commenced within the 90-day or 180-day time frame laid out in Indiana Code 31-35-2-6, but rather was conducted 222 days after the filing of the petition to terminate.

But Judge L. Mark Bailey, writing for the unanimous appellate panel, noted C.G.G. did not file a written motion to dismiss, but rather moved for dismissal orally at the outset of the hearing. Additionally, when F.C. requested a continuance in December 2016 and the court suggested a March 21 hearing date, the father’s counsel said, “That sounds good.”

That action constituted a waiver of C.G.G.’s current appellate challenge, Bailey wrote. But waiver notwithstanding, DCS also asked the appellate court to determine whether the phrase “shall dismiss” in subsection (b) of the applicable statute is “directory” or “mandatory” as it relates to the dismissal of a petition to terminate when a fact-finding hearing is not held within the statutory time frame. DCS advocated for a “directory” interpretation similar to the holding in Parmeter v. Cass County Department of Child Services, 878 N.E.2d 444 (Ind. Ct. App. 2007).

But the appellate panel declined to address that issue, noting that because C.G.G. presented no reviewable issue, the disposition of the instant case does not hinge upon the interpretation of the word “shall.” Additionally, the statutes in Parmeter “did not include a specific enforcement mechanism for non-compliance, as does subsection (b)… .”

“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,” Bailey wrote.

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