MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 13 2019, 9:25 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots INDIANA DEPARTMENT OF Danielle L. Gregory CHILD SERVICES Marion County Public Defender Agency Curtis T. Hill, Jr. – Appellate Division Attorney General of Indiana Indianapolis, Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana ATTORNEYS FOR APPELLEE CHILD ADVOCATES, INC. DeDe K. Connor Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Termination of the August 13, 2019 Parent-Child Relationship of Court of Appeals Case No. S.B., B.L., Elv.L, Eli.L., and 19A-JT-224 A.L. (Minor Children) and Appeal from the Marion Superior C.L. (Mother), Court The Honorable Marilyn A. Appellant-Respondent, Moores, Judge v. The Honorable Larry Bradley, Magistrate
Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019 Page 1 of 7 Indiana Department of Child Trial Court Cause Nos. Services, 49D09-1805-JT-577 49D09-1805-JT-578 Appellee-Petitioner, 49D09-1805-JT-579 49D09-1805-JT-580 And 49D09-1805-JT-581
Child Advocates, Inc., Appellee-Guardian ad Litem.
Mathias, Judge.
[1] The Marion Superior Court terminated the parent-child relationship of C.L.
(“Mother”) and her five children, S.B., B.L., Elv.L., Eli.L., and A.L. on
December 14, 2018. Mother argues she was entitled to dismissal of the
termination petition because the factfinding hearing was outside the statutory
parameters of Indiana Code section 31-35-2-6. We affirm.
Facts and Procedural History
[2] On May 27, 2016, all five children were adjudicated Children in Need of
Services (“CHINS”) and placed in foster homes. Mother was ordered to
successfully complete services including home-based therapy and a domestic
violence assessment. Mother improved, and the children progressed in therapy
throughout 2017. On August 2, 2017, the children were placed with Mother in
temporary in-home trial visitation (“TTV”). The children were again removed
from Mother’s care in September 2017 because of a variety of concerns
Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019 Page 2 of 7 including the lack of utilities in the home, inappropriate discipline, domestic
violence and Mother’s non-compliance with drug screens. The children’s
providers noted that the children regressed during TTV and many of their
problematic behaviors reappeared. Tr. pp. 37–38, 171, 176. After the children
were removed, Mother was noncompliant and did not participate in case
management to address her issues of housing, employment, parenting skills,
healthy relationships, and the children’s trauma. The Marion County
Department of Children Services (“MCDCS”), Guardian ad Litem, and other
providers did not recommend resuming Mother’s visitation with the children,
and the placement plan changed from reuniting the family to adoption. Ex.
Vol., Petitioner’s Ex. 30.
[3] On May 13, 2018, MCDCS filed petitions for the involuntary termination of the
parent-child relationship for each child. Appellant’s App. Vol II, pp. 50–53,
Appellant’s App. Vol. III, pp. 2–13. Mother requested a mediation date and a
factfinding hearing date at a pre-trial hearing on August 3, 2018, eighty days
after MCDCS filed the termination petitions. Appellant’s App. Vol. II, p. 84.
The court scheduled mediation for October 1, 2018, and set the factfinding
hearing for December 4 and 11, 2018. Id. at 83-84. There is no indication that
Mother objected to the hearing dates set.
[4] Mediation was rescheduled for November 7, 2018, 176 days after MCDCS filed
the termination petitions. Id. at 92. No agreement was reached in mediation,
and the factfinding hearing began December 4, 2018, 210 days after the
termination petitions were filed. Id. at 97.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019 Page 3 of 7 [5] At the beginning of the December 4 hearing, Mother orally requested dismissal
of the termination matter, arguing the hearing was beyond the statutory limit of
180 days after the petitions were filed. Tr. p. 4. The trial court denied the
motion.
[6] The trial court issued findings of fact and terminated the parent-child
relationship as to all five children. Mother does not challenge the findings and
conclusions of the trial court. Mother solely appeals the trial court’s denial of
her motion to dismiss.
Discussion and Decision
[7] Indiana Code section 31-35-2-6 specifies the timeline for conducting factfinding
hearings in parental rights termination proceedings. The statute provides:
(a) Except when a hearing is required after June 30, 1999, under section 4.5 of this chapter, the person filing the petition shall request the court to set the petition for a hearing. Whenever a hearing is requested under this chapter, the court shall:
(1) commence a hearing on the petition not more than ninety (90) days after a petition is filed under this chapter; and
(2) complete a hearing on the petition not more than one hundred eighty (180) days after a petition is filed under this chapter.
(b) If a hearing is not held within the time set forth in subsection (a), upon filing a motion with the court by a party, the court shall
Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019 Page 4 of 7 dismiss the petition to terminate the parent-child relationship without prejudice.
I.C. § 31-35-2-6. Here, the factfinding hearing commenced 210 days after the
termination petitions were filed and concluded 217 days after the petitions were
filed. Mother asserts she is entitled to dismissal of the petitions due to the
untimeliness of the hearings and that the failure to dismiss denied her right to
due process. Appellant’s Br. p. 14.
[8] The interpretation of a statute is a question of law, which is reviewed de novo.
Matter of N.C, 83 N.E.3d 1265, 1267 (Ind. Ct. App. 2017) (citing In re Adoption of
M.L., 973 N.E.2d 1216, 1223 (Ind. Ct. App. 2012)).
[9] The State argues that Mother acquiesced to the hearing date and thus waived
her right to challenge the setting of the factfinding hearing date, even though it
fell outside the statutory 180 days. Appellee’s Br. at 15. There is no record of
Mother objecting to the timeliness of the dates set at the August 3, 2018 pre-trial
hearing.
[10] This matter is directly addressed in Matter of N.C., where the court determined
the parents waived the right to dismissal for untimeliness by requesting a
continuance of a scheduled hearing date, and then agreeing the date “sound[ed]
good.” 83 N.E.3d at 1267.1 In the present case, Mother also agreed to the
1 Mother attempts to distinguish the present case from Matter of N.C., stating that she requested the hearing date, not MCDCS; her counsel was unaware of the close deadline or that the matter was being scheduled outside of the deadlines; and her counsel did not request a continuance of the proceedings. However, Mother
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 13 2019, 9:25 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots INDIANA DEPARTMENT OF Danielle L. Gregory CHILD SERVICES Marion County Public Defender Agency Curtis T. Hill, Jr. – Appellate Division Attorney General of Indiana Indianapolis, Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana ATTORNEYS FOR APPELLEE CHILD ADVOCATES, INC. DeDe K. Connor Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In re the Termination of the August 13, 2019 Parent-Child Relationship of Court of Appeals Case No. S.B., B.L., Elv.L, Eli.L., and 19A-JT-224 A.L. (Minor Children) and Appeal from the Marion Superior C.L. (Mother), Court The Honorable Marilyn A. Appellant-Respondent, Moores, Judge v. The Honorable Larry Bradley, Magistrate
Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019 Page 1 of 7 Indiana Department of Child Trial Court Cause Nos. Services, 49D09-1805-JT-577 49D09-1805-JT-578 Appellee-Petitioner, 49D09-1805-JT-579 49D09-1805-JT-580 And 49D09-1805-JT-581
Child Advocates, Inc., Appellee-Guardian ad Litem.
Mathias, Judge.
[1] The Marion Superior Court terminated the parent-child relationship of C.L.
(“Mother”) and her five children, S.B., B.L., Elv.L., Eli.L., and A.L. on
December 14, 2018. Mother argues she was entitled to dismissal of the
termination petition because the factfinding hearing was outside the statutory
parameters of Indiana Code section 31-35-2-6. We affirm.
Facts and Procedural History
[2] On May 27, 2016, all five children were adjudicated Children in Need of
Services (“CHINS”) and placed in foster homes. Mother was ordered to
successfully complete services including home-based therapy and a domestic
violence assessment. Mother improved, and the children progressed in therapy
throughout 2017. On August 2, 2017, the children were placed with Mother in
temporary in-home trial visitation (“TTV”). The children were again removed
from Mother’s care in September 2017 because of a variety of concerns
Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019 Page 2 of 7 including the lack of utilities in the home, inappropriate discipline, domestic
violence and Mother’s non-compliance with drug screens. The children’s
providers noted that the children regressed during TTV and many of their
problematic behaviors reappeared. Tr. pp. 37–38, 171, 176. After the children
were removed, Mother was noncompliant and did not participate in case
management to address her issues of housing, employment, parenting skills,
healthy relationships, and the children’s trauma. The Marion County
Department of Children Services (“MCDCS”), Guardian ad Litem, and other
providers did not recommend resuming Mother’s visitation with the children,
and the placement plan changed from reuniting the family to adoption. Ex.
Vol., Petitioner’s Ex. 30.
[3] On May 13, 2018, MCDCS filed petitions for the involuntary termination of the
parent-child relationship for each child. Appellant’s App. Vol II, pp. 50–53,
Appellant’s App. Vol. III, pp. 2–13. Mother requested a mediation date and a
factfinding hearing date at a pre-trial hearing on August 3, 2018, eighty days
after MCDCS filed the termination petitions. Appellant’s App. Vol. II, p. 84.
The court scheduled mediation for October 1, 2018, and set the factfinding
hearing for December 4 and 11, 2018. Id. at 83-84. There is no indication that
Mother objected to the hearing dates set.
[4] Mediation was rescheduled for November 7, 2018, 176 days after MCDCS filed
the termination petitions. Id. at 92. No agreement was reached in mediation,
and the factfinding hearing began December 4, 2018, 210 days after the
termination petitions were filed. Id. at 97.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019 Page 3 of 7 [5] At the beginning of the December 4 hearing, Mother orally requested dismissal
of the termination matter, arguing the hearing was beyond the statutory limit of
180 days after the petitions were filed. Tr. p. 4. The trial court denied the
motion.
[6] The trial court issued findings of fact and terminated the parent-child
relationship as to all five children. Mother does not challenge the findings and
conclusions of the trial court. Mother solely appeals the trial court’s denial of
her motion to dismiss.
Discussion and Decision
[7] Indiana Code section 31-35-2-6 specifies the timeline for conducting factfinding
hearings in parental rights termination proceedings. The statute provides:
(a) Except when a hearing is required after June 30, 1999, under section 4.5 of this chapter, the person filing the petition shall request the court to set the petition for a hearing. Whenever a hearing is requested under this chapter, the court shall:
(1) commence a hearing on the petition not more than ninety (90) days after a petition is filed under this chapter; and
(2) complete a hearing on the petition not more than one hundred eighty (180) days after a petition is filed under this chapter.
(b) If a hearing is not held within the time set forth in subsection (a), upon filing a motion with the court by a party, the court shall
Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019 Page 4 of 7 dismiss the petition to terminate the parent-child relationship without prejudice.
I.C. § 31-35-2-6. Here, the factfinding hearing commenced 210 days after the
termination petitions were filed and concluded 217 days after the petitions were
filed. Mother asserts she is entitled to dismissal of the petitions due to the
untimeliness of the hearings and that the failure to dismiss denied her right to
due process. Appellant’s Br. p. 14.
[8] The interpretation of a statute is a question of law, which is reviewed de novo.
Matter of N.C, 83 N.E.3d 1265, 1267 (Ind. Ct. App. 2017) (citing In re Adoption of
M.L., 973 N.E.2d 1216, 1223 (Ind. Ct. App. 2012)).
[9] The State argues that Mother acquiesced to the hearing date and thus waived
her right to challenge the setting of the factfinding hearing date, even though it
fell outside the statutory 180 days. Appellee’s Br. at 15. There is no record of
Mother objecting to the timeliness of the dates set at the August 3, 2018 pre-trial
hearing.
[10] This matter is directly addressed in Matter of N.C., where the court determined
the parents waived the right to dismissal for untimeliness by requesting a
continuance of a scheduled hearing date, and then agreeing the date “sound[ed]
good.” 83 N.E.3d at 1267.1 In the present case, Mother also agreed to the
1 Mother attempts to distinguish the present case from Matter of N.C., stating that she requested the hearing date, not MCDCS; her counsel was unaware of the close deadline or that the matter was being scheduled outside of the deadlines; and her counsel did not request a continuance of the proceedings. However, Mother
Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019 Page 5 of 7 mediation and hearing dates set on August 3, 2018. Her assent to the
factfinding hearing dates constitutes a waiver of her right to object to the
timeliness of the hearing.
[11] The State also argues that Mother failed to meet the requirements of Indiana
Code section 31-35-2-6(b) because she orally moved for dismissal at the outset
of the factfinding hearing and failed to file a motion for dismissal. The court in
Matter of N.C. determined the plain language of the statute contemplates the
filing of a motion and that orally moving for dismissal does not satisfy the
requirements of subsection (b). 83 N.E.3d at 1267.2 Mother’s failure to submit a
written motion for dismissal waives her right to challenge the court’s denial.
[12] Mother’s failure to object to the mediation and factfinding hearing dates set at
the pre-trial hearing on August 3, 2018 constitutes a waiver of the right to
challenge the factfinding hearing date, even though it fell outside the statutory
180 days. Mother further failed to preserve an issue for appellate review
through her failure to submit a written motion to dismiss. Mother can be
afforded no relief on this appeal.
fails to develop these arguments any further. “Each contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on appeal relied on, in accordance with Rule 22.” Ind. Appellate Rule 46(A)(8)(a). Accordingly, we consider them waived for failure to state a cogent argument. See In re Adoption of M.S., 10 N.E.3d 1272, 1282 (Ind. Ct. App. 2014) (citing Ind. Appellate Rue 46(A)(8)(a)). 2 Mother argues that her due process rights were violated by the untimeliness of the factfinding hearing. However, her assent to the factfinding hearing dates and failure to submit a written motion to the trial court waive her due process arguments. Mother further failed to show how she was prejudiced by this delay in any way.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019 Page 6 of 7 Conclusion
[13] Mother agreed to the setting of the factfinding hearing date outside the statutory
parameters and failed to submit a written motion to dismiss the termination
proceedings. She thus preserved no issue for appellate review under Indiana
Code section 31-35-2-6.
[14] Affirmed.
May, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-JT-224 | August 13, 2019 Page 7 of 7