The Marion Superior Court, Juvenile Division had good cause when it delayed a pair of hearings in a recent child in need of services case, and the evidence against a father of two supported the trial court’s conclusion that his kids are CHINS, the Indiana Court of Appeals has ruled.
Father D.W. and mother K.A. have two children, R.W. and K.W., born in 2005 and 2011. The couple, divorced in 2011, have a history of struggles with substance abuse, and multiple Department of Child Services assessments had been performed over the years. A CHINS proceeding was initiated in 2016 and closed in 2017.
In November 2019, the Monroe Circuit Court granted D.W. legal and physical custody of the children and suspended the mother’s parenting time in a domestic relations case. But the following January, the trial court found D.W. in contempt for his failure to cooperate with DCS. The father continued to be uncooperative with DCS and refused to submit to drug screens.
D.W. was also suspected of sexually abusing K.W., whom he shared a bed with, around this time. A DCS family case manager later took the daughter to Riley Hospital for Children for an examination, which found “some redness near the inferior portion of her vagina” and “some edema to her labia minora and majora.”
DCS filed a petition alleging that the children were CHINS in February 2020.
Due to COVID-19, the time for conducting the fact-finding hearing in the case — which was proceeding in Marion Superior Court — was tolled from March 16, 2020, through Aug. 14, 2020. DCS then filed a motion to convert the hearing to a pretrial conference, which the trial court granted. The trial court then set the matter for an additional pretrial conference in September 2020.
The trial court set the fact-finding hearing for Oct. 30, 2020, but on Oct. 23, D.W. filed a motion to dismiss the CHINS proceedings, claiming he did not waive the statutory requirement to hold a fact-finding hearing within 60 days. The motion was denied.
The hearing went forward as scheduled. Christina Adkins, R.W.’s therapist, testified that R.W. disclosed physical abuse by D.W., homelessness and “educational abuse where she was not able to go to school.” K.W.’s therapist testified K.W. disclosed that her father “hit her sister” and that K.W. “witnessed him hit [R.W.] on numerous occasions.”
Kara Reagan, guardian ad litem from the Monroe County dissolution proceedings, testified that she had “serious concerns” about drug abuse, D.W.’s ability to provide safe and stable housing, his ability to manage R.W.’s behaviors, and the children’s numerous absences and tardy notices from school.
At the end of the fact-finding hearing, DCS requested to amend the pleadings pursuant to Indiana Trial Rule 15(B) to conform to the evidence to include allegations made during the testimony of physical abuse of R.W. by D.W. The father did not object to the request.
On Jan. 29, 2021, the trial court orally found the children to be CHINS. The trial court’s written order after the Jan. 29 hearing provided: “[Father’s Counsel] objects to the disposition being set out 30 days. Court finds good cause to go outside the 30-day disposition due to Covid, transfer of new systems and docket congestion.”
The judicial officer also advised that, due to a medical procedure, the dispositional hearing would be delayed until March 12.
On March 10, D.W. filed a second motion to dismiss the CHINS proceedings, arguing the trial court was statutorily required to complete a dispositional hearing within 30 days after finding that the children became CHINS. The court denied the motion, noting the judge had been out for surgery.
In finding the trial court didn’t abuse its discretion in moving the fact-finding hearing, the Court of Appeals pointed to Trial Rule 53.5 and Matter of M.S., 140 N.E.3d 279, 282 (Ind. 2020).
On the issue of the dispositional hearing deadline, D.W. argued Trial Rule 53.5 can only apply to trials, and the dispositional hearing is not a “trial.”
But “(p)ursuant to our Supreme Court’s holding in M.S., Trial Rule 53.5 trumps Indiana Code Section 31-34-19-1 on matters of procedure,” Judge Elizabeth Tavitas wrote for the appellate court. “Accordingly, Trial Rule 53.5 allows an extension of the statutory deadline to conduct a CHINS dispositional hearing where ‘good cause’ is shown. The trial court here found good cause for a continuance because of the COVID-19 pandemic, transfer of new systems to Odyssey, docket congestion, and the trial court judge’s surgery.”
D.W. also argued the trial court could not sua sponte order the continuance pursuant to Trial Rule 53.5. Rather, a motion of a party was required.
The COA rejected that argument, as well.
“We have held that ‘a trial judge may sua sponte grant a continuance because of a party’s illness,’” the court wrote in a footnote, pointing to Farley v. Farley, 172 Ind. App. 120, 123, 359 N.E.2d 583, 585 (1977).
In analyzing the evidence in the case, the COA determined the trial court did not clearly err in determining the children were CHINS.