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In re Termination of Parent-Child Relationship of J.C.

Court of Appeals of Indiana

September 24, 2019

In re the Termination of the Parent-Child Relationship of J.C. and R.C. (Minor Children)
v.
Indiana Department of Child Services, Appellee-Petitioner, and B.C. (Mother), Appellant-Respondent, and Child Advocates, Inc., Appellee-Guardian ad Litem.

          Appeal from the Marion Superior Court The Honorable Marilyn A. Moores, Judge, The Honorable Scott B. Stowers, Magistrate Trial Court Cause Nos. 49D09-1803-JT-347, 49D09-1803-JT-348

          Attorneys for Appellant Valerie K. Boots Matthew D. Anglemeyer Marion County Public Defender – Appellate Division Indianapolis, Indiana.

          Attorneys for Appellee Indiana Department of Child Services Curtis T. Hill, Jr. Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana.

          MATHIAS, JUDGE. [1]

         [¶1] B.C. ("Mother") appeals the order of the Marion Circuit Court terminating her parental rights to her children J.C. and R.C. (collectively "the Children"). On appeal, Mother presents three issues, which we reorder and restate as:

I. Whether the trial court erred by denying Mother's motion to dismiss the petition to terminate her parental rights because the evidentiary hearings were not completed within the statutory 180-day time frame;
II. Whether the trial court abused its discretion by admitting into evidence the results of Mother's drug screens; and
III. Whether the trial court's termination orders are supported by sufficient evidence.

         Concluding that Mother waived the statutory time limit, that the admission of the drug screen results was harmless, and that there is sufficient evidence to support the trial court's termination orders, we affirm.

         Facts and Procedural History

         [¶2] Mother, born in August 1986, has struggled with addiction since she was a teenager. Mother admitted to having used a "slew" of illicit drugs, including marijuana, cocaine, spice, and "probably" methamphetamine. Tr. Vol. 2, pp. 16, 125. Mother is the biological mother to five children, including the two sons involved in the present case: J.C., born in July 2014, and R.C., born in November 2015.[2]

         [¶3] On May 28, 2016, Mother overdosed on her prescription medication and was found unresponsive in her home. The Department of Child Services ("DCS") removed the Children from the home and, on May 31, 2016, filed a petition that the Children were children in need of services ("CHINS").[3] On August 2, 2016, Mother admitted that the Children were CHINS. The trial court entered a dispositional decree that ordered Mother to participate in a variety of services, including participating in home-based therapy and home-based case management, undergoing a substance abuse assessment and following all recommendations, and submitting to random drug screens. The Children were placed in foster care. The permanency plan was reunification of the Children with Mother.

         [¶4] Mother was initially compliant with her home-based case worker, who set three goals for Mother: housing, employment, and sobriety. During the first month of her interaction with Mother, the home-based case worker met with Mother weekly to assist Mother in meeting these goals. After the first month, however, the meetings became more sporadic: once per month or less. Mother disclosed to her case manager that she was in an abusive relationship with her boyfriend. The case manager offered to provide Mother with domestic violence services, but Mother refused. Eventually, the case worker closed the home-based case management services as unsuccessful.

         [¶5] Mother initially attended scheduled visitations and generally interacted well with the Children. Mother then relapsed into drug use, and DCS requested that Mother's visitations be suspended. The trial court granted this request at a periodic review hearing on February 28, 2017. Mother's visitation resumed in June 2017. From August until December of that year, Mother visited the Children once per week. Between February 2018 and March 2018, Mother missed several scheduled visitations with the Children. On one occasion when Mother did attend a scheduled visitation, she appeared paranoid and did not engage with the Children. She told the visitation supervisor that she thought her boyfriend was going to kill her. On those occasions where Mother did not show up for her scheduled visitation, the Children became upset and disappointed. Mother's last visitation was in March 2018.

         [¶6] In October 2017, Mother was referred to an intensive outpatient ("IOP") alcohol and drug treatment program. Mother was "a little evasive" about her drug use to the IOP director. The director recommended that Mother participate in IOP, which included weekly one-hour home-based sessions and three weekly three-hour sessions. The treatment plan was for Mother to refrain from drug and alcohol use and attend all sessions. Mother appeared to be highly motivated but failed to see her marijuana use as a problem, arguing that marijuana should be legalized. Mother's participation in IOP was spotty; she missed approximately half of the sessions due to alleged transportation issues. She then signed an agreement not to miss any more sessions but last attended a session in February 2018, after which time she was kicked out of the program. A few weeks before the October 11, 2018 evidentiary hearing on the petition to terminate Mother's parental rights, Mother contacted the director of the IOP program saying she was interested in rejoining the program.

         [¶7] Mother's problems with services were related to her continued use of illicit drugs. Mother missed several scheduled drug screens, claiming that she had transportation issues. Her case manager therefore gave her bus passes. But Mother still missed numerous drug screens.

         [¶8] On March 22, 2018, Mother was arrested after police found her in a truck with her boyfriend in possession of a handgun and illicit drugs. Mother was later arrested again, this time for resisting law enforcement by fleeing. Mother failed to appear at a hearing on the criminal matter, and the criminal court issued a warrant for her arrest. Mother chose not to appear for several court hearings in the CHINS and termination cases because she did not want to be arrested. Mother eventually pleaded guilty on October 2, 2018 to Level 4 felony possession of cocaine, Level 5 felony possession of a handgun without a license, and Class A misdemeanor resisting law enforcement. Mother was sentenced to six years with three years executed on home detention and three years suspended to probation.

         [¶9] On March 15 and 27, 2018, DCS filed petitions to terminate Mother's parental rights to R.C. and J.C., respectively. At a pre-trial hearing held on June 25, 2018, the trial court set the evidentiary hearing on the termination petition to be held on September 26 and October 10, 2018. At the beginning of the September 26 hearing, Mother moved for a continuance that the trial court denied. At the end of the October 10 hearing, the trial court continued the matter to the next day. At the beginning of the October 11 hearing, Mother moved for dismissal, claiming that the trial court had failed to conclude the termination hearings within the statutorily mandated timeframe. The trial court denied this motion. At the conclusion of the October 11 hearing, the trial court continued the hearing to November 26. On October 18, Mother filed a motion to reconsider the court's ruling on her oral motion to dismiss, which the trial court denied after a hearing. On January 14, 2019, the trial court entered findings of fact and conclusions of law terminating Mother's parental rights to the Children. Mother now appeals.

         I. Motion to Dismiss

         [¶10] Mother argues that the trial court erred by denying her motion to dismiss the State's petition to terminate her parental rights because the termination hearing was not completed within 180 days of the filing of the petition. The statute governing the time limits for hearings on termination petitions provides:

(a) Except when a hearing is required after June 30, 1999, under section 4.5 of this chapter, [4] 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 dismiss the petition to terminate the parent-child relationship without prejudice.

Ind. Code § 31-35-2-6 (emphases added).

         [¶11] Here, DCS filed the petition to terminate Mother's parental rights to R.C. on March 15, 2018, and filed the petition to terminate Mother's parental rights to J.C. on March 27, 2018. Thus, pursuant to Indiana Code section 31-35-2-6, the hearings on the petition regarding R.C. should have commenced no later than June 13, 2018 and completed no later than September 11, 2018. And the hearings on the petition regarding J.C. should have commenced no later than June 25, 2018 and completed no later than September 24, 2018.[5]

         [¶12] However, the trial court did not commence a hearing on the termination petitions until September 26, 2018, and did not complete the hearings on the petition until November 26, 2018. Mother therefore argues that the trial court violated the plain language of subsection (a)(1) and (a)(2) of Indiana Code section 31-35-2-6, and that subsection (b) required the trial court to dismiss the petitions.

         [¶13] At first blush, Mother's argument appears to have merit. But Mother's argument overlooks the fact that she failed to object to any delay in the hearings. Specifically, the trial court held a pre-trial hearing on June 25, 2018, which was already past the ninety-day deadline in R.C.'s case and was the last day of the ninety-day deadline in J.C.'s case. Mother appeared by counsel, and the trial court set the termination petition for evidentiary hearings to be held on September 26 and October 10, 2018. Mother did not object to the setting of these dates, which were outside both the ninety and 180-day time limits set forth in Indiana Code section 31-35-2-6. Not only did Mother fail to object, the trial court specifically noted that Mother affirmatively waived the "180 day requirement." Appellant's App. p. 75. Additionally, when the trial court began the hearing on September 26, Mother's counsel did not object to the lateness of the hearings but instead moved for a continuance. Mother did not indicate any issue with the delay in the hearings until the third day of the evidentiary hearing, when she orally moved to dismiss. When the trial court denied her oral motion, Mother filed a written motion to reconsider, which the trial court also denied.

         [¶14] The State contends that these facts demonstrate that Mother waived any objection to the delay in the hearings. We agree. This court addressed a similar situation in In re N.C. , 83 N.E.3d 1265 (Ind.Ct.App. 2017). In that case, DCS filed a petition to terminate the parental rights of the father of N.C. The hearing on the termination petition was not commenced within ninety days of the filing of the petition, nor was it completed within 180 days after the filing of the petition. Instead, it was conducted 222 days after the filing of the petition.

         [¶15] On appeal, the father argued that the trial court should have dismissed the petition when he orally moved to dismiss at the start of the evidentiary hearing. The N.C. court disagreed, holding that the father had waived any argument that the hearings were held beyond the statutory deadlines.[6] Id. at 1267. The N.C. court held that the father had acquiesced to the hearing date, writing:

At a hearing conducted on December 9, 2016, [ N.C. ]'s Mother requested a continuance and a discussion ensued as to available court dates. The court reporter suggested March 21, 2017, and Father's counsel responded: "That sounds good." Father's counsel then inquired about the specific length of the fact-finding hearing, whether all day or one-half day. In general, "waiver" connotes an "intentional relinquishment or abandonment of a known right." Plank v. Cmty. Hospitals of Ind., Inc., 981 N.E.2d 49, 53 (Ind. 2013). We agree with the DCS that Father waived his right to challenge the setting of that factfinding hearing date, although it fell outside the statutory 180 days. As such, Father can be afforded no relief in this appeal.

Id. (record citations omitted).

         [¶16] The same is true here. At the pre-trial hearing where the trial court set the evidentiary hearings for dates beyond the statutory time limits, Mother not only did not object, but she affirmatively waived the 180-day time limit. Moreover, Mother did not move to dismiss until the third day of the hearing. Accordingly, she cannot claim on appeal that the trial court erred by setting the hearings for dates beyond the statutory time limit.[7] See id.

         [¶17] Mother acknowledges the holding in N.C. but argues that we should follow a line of cases interpreting a similar statutory time limits for fact-finding hearings in CHINS cases. The relevant CHINS statute provides in part:

(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 (emphases added).

         [¶18] Prior to 2012, subsection (d) was not yet part of this statute. See In re J.R., 98 N.E.3d 652, 655 (Ind.Ct.App. 2018). Before this subsection was added, we had held that the use of the word "shall" in subsection (a) of this statute was "directory and not mandatory." Parmeter v. Cass Cnty. Dep't of Child Servs., 878 N.E.2d 444, 448 (Ind.Ct.App. 2007). "Our holding [in Parmeter] was based on the principle that 'the term "shall" is directory when the statute fails to specify adverse consequences, the provision does not go to the essence of the statutory purpose, and a mandatory construction would thwart the legislative purpose.'" J.R., 98 N.E.3d at 654 (quoting Parmeter, 878 N.E.2d 448). Prior to the addition of subsection (d), Indiana Code section 31-34-11-1 contained no specific consequence for failure to hold the fact-finding hearing within the statutory time frame. See id. at 654–55, The Parmeter court therefore concluded that a mandatory construction would thwart the legislative purposes of the CHINS statutes to assist parents to fulfill their parental obligations and remove children only when in their best interests "by requiring dismissal of ...


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