Parmeter v. Cass Cty Dept. of Child Serv.

• Decision Date: 28 December 2007
• Docket Number: No. 09A05-0703-JV-158.,09A05-0703-JV-158.
• Citation: 878 N.E.2d 444
• Parties: Heather PARMETER, Appellant, v. CASS COUNTY DEPARTMENT OF CHILD SERVICES, Appellee.
• Court: Indiana Appellate Court

878 N.E.2d 444

Heather PARMETER, Appellant, v. CASS COUNTY DEPARTMENT OF CHILD SERVICES, Appellee.

No. 09A05-0703-JV-158.

Court of Appeals of Indiana.

December 28, 2007.

Florence Anne Briggs, Briggs Law Office, Flora, IN, Attorney for Appellant.

Michael E. Boonstra, Logansport, IN, Attorney for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Heather Parmeter ("Mother") appeals from the trial court's determination that her minor children, a son C.P. ("son") and a daughter C.P. ("daughter") (collectively "the children"), are children in need of services ("CHINS"). We address four issues for our review, namely:

1. Whether the trial court had jurisdiction over the CHINS cases.

2. Whether the trial court abused its discretion when it denied Mother's motion to dismiss the CHINS cases.

3. Whether the trial court abused its discretion when it denied Mother's motion to strike the report of the guardian ad litem ("GAL").

4. Whether the evidence is sufficient to support the CHINS determinations.

We affirm in part and remand with instructions.

FACTS AND PROCEDURAL HISTORY

While Mother was married to Shonn Parmeter ("Father"), she gave birth to twin children, son and daughter. Sometime after the children were born, Mother and Father separated, and, in 2006, dissolution proceedings were initiated. The parties' divorce was final in the fall of 2006.

On June 7, 2006, the Cass County Department of Child Services ("DCS") investigated a report that naked photographs had been taken of son. As a result of that investigation, on June 8, 2006, DCS filed petitions for authorization to file petitions alleging son and daughter to be CHINS. After receiving permission from the trial court, the DCS filed the CHINS petitions and requested the immediate detention of the children. At the detention hearing on June 8, the trial court denied Mother's motion to dismiss the petitions and heard evidence on the detention request. The trial court then ordered the children to be temporary wards of DCS for placement in a foster home and appointed Lisa Traylor-Wolff as GAL.

On June 30, 2006, Mother filed a motion for an expedited fact-finding hearing. On August 1, 2006, DCS filed a motion to continue the fact-finding hearing that had been set for August 2. Mother objected to the continuance. The trial court originally denied the motion but, after reviewing DCS's motion to reconsider, granted the continuance and reset the fact-finding hearing for September 12, 2006. Mother then filed a motion to continue the September 12 hearing date, which the trial court granted, resetting the hearing for October 16 and 17, 2006. On August 10, Mother filed a motion to dismiss the CHINS petition, which the trial court denied.

On August 15, 2006, Mother again filed a motion to continue the fact-finding hearing, which the trial court denied. The fact-finding hearing commenced on October 16, 2006, but, on October 17, 2006, the trial court again continued the hearing on Mother's motion and because of "technical difficulties." Appellant's Supp.App. at 129. The trial court resumed the fact-finding hearing on November 17 and, at the conclusion of evidence, took the matter under advisement. On November 28, 2006, the trial court entered its order finding the children to be CHINS. After a review hearing on December 4, 2006, the trial court continued the children's placement with Father.¹

On December 22, 2006, Mother filed her objection to length of time before dispositional hearing, which was set for February 26, 2007. On December 29, the GAL filed her report ("GAL report"). And on January 12, 2007, Mother filed her objection to the GAL report, alleging that the GAL had a conflict of interest because the GAL had become "the law partner of Kelly Leeman, attorney for [Father], on or about January 1, 2007."² Appellant's App. at 115. On January 17, 2007, the GAL filed her motion to withdraw appearance on the ground that her plan to move her practice into the offices of Father's attorney created the appearance of a conflict of interest. However the GAL also filed a response to Mother's objection to the GAL report, clarifying that the GAL had not become the law partner of Father's counsel. Instead, the GAL was assuming the law practice of another attorney, whose files were located in the office of Father's counsel. She further clarified that her plans to share office space with Father's counsel were not discussed or finalized prior to the filing of the GAL report.

On February 22, 2007, Mother filed her motion to reverse or set aside the CHINS finding. At the dispositional hearing on February 26, 2007, the trial court denied Mother's motion and then heard evidence on the disposition. At the conclusion of the hearing, the trial court took disposition under advisement. On March 7, 2007, Mother again filed a motion to dismiss the CHINS petition. On March 13, 2007, the trial court "execute[d the] Dispositional Decree dated March 8, 2007[.]" Appellant's App. at 13. Mother now appeals.³

DISCUSSION AND DECISION

Issue One: Jurisdiction

Mother contends that the trial court was without jurisdiction over the CHINS cases.⁴ Specifically, she alleges that the trial court lost jurisdiction because it did not hold the fact-finding and dispositional hearings within the statutory time limits for holding such hearings. She also argues that the trial court abused its discretion when it granted DCS's motions to continue the fact-finding hearing. We address each contention in turn.

Statutory Hearing Time Limits

Mother maintains that the trial court was without jurisdiction over the CHINS cases because it did not hold the fact-finding or dispositional hearings within the statutorily prescribed time limits. Indiana Code Section 31-34-11-1 governs fact-finding hearings. That statute provides, in relevant part:

(a) [T]he 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.

Ind.Code § 31-34-11-1 (emphasis added). Indiana Code Section 31-34-19-1 governs dispositional hearings and provides, in relevant part:

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. . . .

Both statutes use "shall" regarding the time limits set forth. Here, it is undisputed that the trial court did not meet either deadline. Thus, we must determine whether "shall" in these statutes is "directory" or "mandatory." See In re Middlefork Watershed Conservancy Dist., 508 N.E.2d 574, 578 (Ind.Ct.App.1987).

A statute containing the term "shall" generally connotes a mandatory as opposed to a discretionary import. Id. However, "shall" may be construed as directory instead of mandatory "to prevent the defeat of the legislative intent." Id. (citations omitted). Thus, 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. Id. (citation omitted); see also Hancock County Rural Elec. Membership Corp. v. City of Greenfield, 494 N.E.2d 1294, 1295-97 (Ind.1986).

Here, Indiana Code Sections 31-34-11-1 and -19-1 use "shall" when setting the deadline for holding fact-finding and dispositional hearings respectively. Neither statute specifies any adverse consequences for the failure to comply with the time limit. Further, Indiana Code Section 31-34-11-1 provides for the extension of the time limit when all parties consent. Also, holding the hearings within the statutory time limits does not go to the purpose of the CHINS statutes, which were enacted in part to "assist[] parents to fulfill their parental obligations" and to "remove children from families only when it is the child's best interest. . . ." Ind.Code § 31-10-2-1(4), (6). And a mandatory construction would thwart those legislative purposes by requiring dismissal of CHINS cases where continuances of the fact-finding or dispositional hearings are needed for legitimate reasons, such as the unavailability of parties or witnesses or the congestion of the court calendar, merely because one party is being a stalwart.

For the reasons stated above, we conclude that "shall" as used in Indiana Code Sections 31-34-11-1 and -19-1 is directory and not mandatory. If we were to hold otherwise, CHINS cases would have to be dismissed where a continuance beyond the statutory time frame was necessary and legitimate, an absurd and unjust result. See Pabey v. Pastrick, 816 N.E.2d 1138, 1148 (Ind.2004) ("In interpreting a statute, courts must seek to give the statute a practical application, to construe it so as to prevent absurdity, hardship, or injustice, and to favor public convenience"). Thus, we conclude that the trial court did not lose jurisdiction over the CHINS cases when it did not hold the fact-finding hearing within sixty days of the filing of the CHINS petitions or hold the dispositional hearing within thirty days of the CHINS determinations. Therefore, we deny Mother's request that we reverse the CHINS determinations because the hearings were not held within the statutory time limits.

Trial Rule 53.5

Mother also contends that the trial court abused its discretion when it granted DCS's motion to continue the fact-finding hearing because DCS did not comply with Trial Rule 53.5. Indiana Trial Rule 53.5 provides, in relevant part:

Upon motion, trial may be postponed or continued in the discretion of the court, and shall be allowed upon a showing of good cause established by affidavit or other evidence. . . . A motion to postpone the trial on account of the absence...