J.T. v. Ind. Dep't of Child Servs. (In re J.W.)

• Decision Date: 25 April 2022
• Docket Number: 21A-JC-2237
• Parties: In re the Matter of: J.W. (Minor Child), Child in Need of Services, v. Indiana Department of Child Services, Appellee-Petitioner, And J.T. (Father), Appellant-Respondent, And Kids' Voices of Indiana. Appellee-Guardian ad Litem.
• Court: Indiana Appellate Court

In re the Matter of: J.W. (Minor Child), Child in Need of Services, And J.T. (Father), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner, And Kids' Voices of Indiana. Appellee-Guardian ad Litem.

No. 21A-JC-2237

Court of Appeals of Indiana

April 25, 2022

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata collateral estoppel, or the law of the case.

Appeal from the Marion Superior Court Juvenile Division The Honorable Marshelle Broadwell, Judge The Honorable Danielle Gaughan, Magistrate Trial Court Cause No. 49D16-2012-JC-2696

Attorneys for Appellant

Valerie Boots Indianapolis, Indiana

Danielle Sheff Indianapolis, Indiana

Attorneys for Appellees

Theodore E. Rokita Attorney General of Indiana

David E. Corey Supervising Deputy Attorney General

Robert J. Henke Deputy Attorney General Indianapolis, Indiana

Katherine Meger Kelsey Indianapolis, Indiana

MEMORANDUM DECISION

ALTICE, JUDGE

Case Summary

[¶1] J.T. (Father), the father of J.W. (Child), appeals the Child in Need of Services (CHINS) adjudication of Child, claiming that the trial court abused its discretion in continuing the factfinding hearing. As a result, Father claims that the continuance violated his right to due process. Father also maintains that the adjudication of Child as a CHINS was clearly erroneous and not supported by sufficient evidence.

[¶2] We affirm.

Facts and Procedural History [¶3] Child was born on December 15, 2020. Shortly before giving birth, K.W. (Mother) became upset about the various conditions in the hospital and the treatment she was receiving. Mother claimed that the hospital staff was "drugging her" and "trying to kill" Child. Appellant's Appendix Vol. II at 25. Father also complained about the hospital personnel and had to be escorted from the building because of his "erratic and aggressive behavior." Id.

[¶4] When Child was born, Mother's older children (Siblings) were subjects of an ongoing CHINS proceeding. On December 18, 2020, the Indiana Department of Child Services (DCS) filed a CHINS petition alleging, among other things, that Mother and Father (collectively, Parents) failed to provide Child with "a safe, stable, and appropriate living environment free from substance abuse." Id. at 24. Child was taken into custody and placed in foster care.

[¶5] Parents did not appear at the December 18 detention hearing, and the juvenile court observed that Father, who had an active arrest warrant, refused to meet with DCS's family case manager (FCM) to accept reunification services. The juvenile court then continued the initial hearing to January 5, 2021. Parents failed to appear at that hearing, and Child remained in foster care. The juvenile court again continued the initial hearing to February 2, 2021.

[¶6] Father did not appear at the February 2 hearing but was represented by counsel. At that time, Father's counsel waived the sixty-day statutory timeframe set forth in Ind. Code § 31-34-11-1(a) that requires a factfinding hearing to be completed not later than sixty days after the CHINS petition is filed. Father's counsel requested that the juvenile court set the matter for mediation and factfinding hearing within 120 days of the filing of the CHINS petition.^[1] The juvenile court noted that, "Counsel agree the 120th day is 4/17/21." Appellant's Appendix Vol. II at 79. The juvenile court set the matter for mediation on March 15 and the factfinding hearing on April 6, 2021. The mediation was unsuccessful.

[¶7] On April 6, over Father's objection, the juvenile court continued the factfinding hearing to August 24, 2021. The juvenile court stated that "there was good cause under Child's case to set this beyond the 120-day statutory trial deadline, given that there are three older children that the Court's already removed [from the] remote schedule. Just can't accommodate a trial within 120 days." Transcript Vol. II at 11. The juvenile court further noted that the hearing on all of the CHINS cases "is going to take a whole morning." Id. at 13.

[¶8] The juvenile court had already set an August 24 permanency hearing with regard to Siblings, so it selected the same day for Child's factfinding hearing. The juvenile court entered an order on April 6, 2021, providing in part that: "The court now finds good cause to set [the matter] beyond the 120-day statutory deadline because of the congested remote dockets being unable to accommodate the lengthy hearings." Appellant's Appendix Vol. II at 99.

[¶9] On June 16, Father filed a motion to dismiss, alleging that

5. Due to the COVID-l9 pandemic and congestion of the court's calendar, . . . the Court on its own motion found good cause to go beyond the 120-day statutory time limit and continued the fact finding for a later date, specifically, August 24, 2021.

6. Counsel for Father objected to the finding of 'good cause' on April 6, 2021 and the setting of a new Fact-Finding date after the 120-day deadline.

. . .

12. Under Indiana Code 31-34-11-1(d) a trial court must dismiss a CHINS petition if the court does not conclude a fact-finding hearing within 120 days of the State's filing of the petition.

13. The Indiana Supreme Court has held that the l20-day time limit may only be extended for 'good cause.' A.C. v. Ind. Dep't of Child Servs. (In re MS.), 140 N.E.3d 279, 280-81 (Ind. 2020). . . . Trial Rule 53.5 gives trial courts the necessary flexibility to ensure fairness in these types of proceedings and effectuate legislative intent. Id. at 285.

14. The 120-day statutory maximum time limit in this case expired on April 15, [sic] 2021.[^[2] 15. The August 24, 2021 Fact Finding is scheduled for 251 days beyond the date the petition was filed, 131 days beyond the expiration of the 120-day statutory time period.

16. While 'good cause' was found by this court on April 6, 2021 to go beyond the 120-day time period, such a finding should not justify delays that go more than two times beyond the statutory time limit.

. . .

20.Here Respondent-Mother and Respondent-Father have not waived the 120-day time period and parties were ready to proceed prior to the passing of the 120-day deadline.

21. The continuance in this case was issued by the Court and never requested by any party.

22. Furthermore, the finding of 'good cause' in this case was not predicated on the necessity to ensure fairness in the proceeding, but rather on 'congested remote dockets being unable to accommodate lengthy hearings.'

23. [The] extent to which the fact finding in this matter has been delayed is excessive and violates Father's due process rights.

Appellant's Appendix Vol. II at 107-08. The juvenile court denied Father's motion that same day.

[¶10] On August 24, 2021, the juvenile court conducted the factfinding hearing.^[3]Although Father received notice of the hearing, he failed to appear. Father's counsel informed the juvenile court that he had been unable to contact Father. DCS confirmed that it had not had any recent contact with Father.

[¶11] The evidence showed that when DCS initially became involved with Child, case manager Sunnie Trunk texted Father and left a voicemail on his phone. Father returned the call at some point, stating that "he would not meet with [Trunk] because he had a warrant for his arrest." Transcript Vol. II at 56, 61. Trunk testified that DCS could not place Child in Father's care because he would not meet with her. And Mother did not want Child placed with anyone in Mother's family.

[¶12] Trunk also testified that DCS history "plays a significant role" in DCS's ultimate recommendation, and Trunk confirmed that there were open CHINS cases regarding Siblings that were filed on August 24, 2020. Id. at 57. Another DCS caseworker, Haley Hawver, who was managing Siblings' CHINS cases, explained that DCS's involvement with Siblings commenced when they were found in a car with Parents, who both "were believed to be under the influence of illegal substances." Id. at 67. Hawver testified that Siblings "were dirty" and "not properly clothed." Id. at 64.

[¶13] Trunk summarized the safety concerns for Child based on her assessment:

So when I went to the hospital and I talked with the social worker, Ms. Lynch, she had told me that they were going to place mom on a psychiatric hold so she would not have a caregiver because Dad was escorted out of the hospital and told not to return due to having an active warrant out for his arrest. So nobody was able to pick the baby up from the hospital. So therefore [Child] had no caregivers at the time.

Id. at 60.

[¶14] The evidence also showed that while Hawver referred Father for supervised visits with Child in early April 2021, Father visited Child only once during that month. Thereafter, Father either canceled the visits or failed to show up for them. At some point, Father told Hawver that he "did not need any services." Id. at 68-70. The evidence showed that Father was unemployed and refused to submit to drug screens.

[¶15] Although a plan for Father to engage in DCS services was in place, he failed to participate. Father met only once with the manager of one of the parental programs. Father failed to attend the next scheduled meeting and he texted the case manager that "he had gotten tied up or that he had gotten busy." Id. at 47-48. Father was ultimately discharged from the program because of his non-participation.

[¶16] According to Hawver, Father went "MIA" near the end of April 2021. Id. at 69. Her last contact with Father was sometime during that month, despite her continued efforts to reach Father and enroll him in services. Hawver agreed that there were concerns...