The Tipton Circuit Court must dismiss children in need of services petitions filed for two local children after it failed to hold a related factfinding hearing within the statutory time limit, the Indiana Court of Appeals ruled Tuesday.
After receiving a report that M.R. was abusing his two children, J.R. and M.R., the Department of Child Services filed petitions on Sept. 29, 2016, declaring the children were CHINS. The juvenile court held a factfinding hearing on Nov. 22, then continued the hearing to the following February.
M.R. and D.R., the children’s mother, objected to the continuance as outside of the statutory 60-day limit to hold factfinding hearings, but the juvenile court overruled the objection. The court then denied a motion to dismiss and found the children were CHINS on Feb. 23, 2017.
After the parents appealed, the Indiana Court of Appeals agreed with their argument that the juvenile court erred in denying the motion to dismiss because the factfinding hearing was not completed within 60 days. Judge Cale Bradford pointed to Indiana Code section 31-34-11-1(d), which holds that a court “shall dismiss the case without prejudice” if a CHINS factfinding hearing is not held within the 60-day limit set out in subsection (a). The 2012 addition of subsection (d) meant that Parmeter v. Cass County Dept. of Child Services, 878 N.e.2d 444, 448 (Ind. Ct. App. 2007) – which held that “shall” in subsection (a) was directory and not mandatory – was no longer good law on that point, Bradford said.
“Moreover, if we were to allow the deadline to be ignored here, trial court could habitually set these matters outside the time frame and there would be no consequence whatsoever,” Bradford wrote. “We believe that any change (including the imposition of any more severe consequences) has to come from the General Assembly, and unless/until that occurs, we are bound to apply the statute as written.”
The court, thus, reversed In the Matter of: J.R. and M.R., Children in Need of Services, D.R. (Mother) and M.R. (Father) v. Indiana Department of Child Services, 80A02-1704-JC-806, and remanded with instructions to dismiss the CHINS petitions without prejudice. The court also noted that if DCS chooses to refile the petitions, it will have to present new evidence regarding the children’s current conditions.