In the Matter of: E.T. (Minor Child), a Child in Need of Services A.T. (Father) v. The Indiana Department of Child Services ( 2020 )

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.
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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.
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[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.
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[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
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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
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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
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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.
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[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
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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.”).
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[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
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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
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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
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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)).
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[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,
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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.
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