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.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MARK SMALL KARRIE K. MCCLUNG

Indianapolis, Indiana DCS, Miami County Office 

ROBERT J. HENKE

DCS Central Administration 

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

IN THE MATTER OF L.L., (CHINS), )

K.R.S. (Mother), )

)

Appellant, )

)

vs. ) No. 52A05-1107-JC-382

)

INDIANA DEPARTMENT OF CHILD ) 

SERVICES, )

)

Appellee. )

APPEAL FROM THE MIAMI CIRCUIT COURT

The Honorable Rick A. Maughmer, Special Judge 

Cause No. 52C01-1011-JC-77 

January 27, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge
2

STATEMENT OF THE CASE

K.R.S. (“Mother”) appeals the juvenile court’s determination that her daughter, 

L.L., was a child in need of services (“CHINS”). 

We affirm.

ISSUE

Whether the juvenile court denied Mother procedural due process during 

the CHINS proceeding.

FACTS

L.L., born in November 2000, has autism, which is a “spectrum disorder” in which 

there is a “wide range of developmental . . . functioning.” (Tr. 112). L.L. is on the “low 

end” of the spectrum and “requires a very high level of care and supervision.” (Tr. 113). 

DCS had been involved in CHINS proceedings with L.L. and Mother during 2009-

2010. During that proceeding, DCS removed L.L. from Mother’s home in Miami County 

and placed her at Damar in Indianapolis. L.L. was ultimately discharged from Damar on 

March 5, 2010 and returned to Mother’s care. Upon her discharge from Damar, L.L., 

who had been incontinent and wore diapers when admitted to Damar, was toilet trained 

and able to wear underwear.

In the Fall of 2010, DCS received reports regarding L.L.’s lack of personal 

hygiene at school as well as an escalation of her symptoms associated with autism and an 

overall deterioration of her behavior. DCS contacted Mother regarding the reports and,

in the course of the investigation, discovered that there were also some issues with 

Mother properly administering medication. On October 5, 2010, DCS received a report 
3

that L.L. went to school with feces in her hair. DCS ultimately removed L.L. from 

Mother’s home and again placed her at Damar. 

On November 4, 2010, DCS filed with the Miami County juvenile court a request

for authorization to file a petition alleging that L.L. was a CHINS.1 That same day, the 

juvenile court granted DCS’s request, DCS filed a petition alleging that L.L. was a 

CHINS, and the juvenile court held an emergency initial hearing,

2

at which Mother 

appeared and was represented by counsel. 

On February 3, 2011, the juvenile court held a fact-finding hearing, at which 

Mother appeared and was represented by counsel. On February 14, 2011, the juvenile 

court issued an order finding L.L. to be a CHINS and setting the dispositional hearing for 

March 7, 2011. 

 On March 7, 2011, counsel for DCS filed a motion to reset the dispositional 

hearing. In the motion, counsel stated that he was ill and that “[c]ounsel for [M]other 

was notified and did not oppose.” (DCS’s App. at 3). That same day, the juvenile court

granted the motion and reset the hearing for May 26, 2011. 

The juvenile court held the dispositional hearing on May 26. Mother was present 

at this hearing and represented by counsel. During the hearing, the court appointed 

special advocate testified and recommended that L.L. be returned to Mother’s care. 

 

1 DCS also initiated CHINS proceedings for L.L.’s eleven-year-old brother, M.L. M.L.’s CHINS 

determination is not part of this appeal. 

2

Immediately after this emergency initial hearing, the juvenile court judge, Judge Robert A. Spahr, 

recused himself from this matter, and Judge Richard A. Maughmer of Cass County assumed jurisdiction 

as a special judge on November 17, 2010. 
4

Chanda Johnson, an autism specialist with Damar, testified that when L.L. was 

readmitted to Damar, she had “regressed across all levels of functioning.” (Tr. 106). She 

testified that L.L. had regressed in her personal hygiene skills, was in diapers again, and 

had elevated levels of maladaptive behaviors, including physical and verbal aggression 

and self injury. Johnson also testified that Mother had been receiving autism education 

classes from Damar and had been regularly visiting L.L. Additionally, Johnson testified 

that L.L. needs a specialized level of care, such as in a group home.

Thereafter, the juvenile court issued its dispositional order, in which it ordered that 

L.L. remain a CHINS ward with continued placement at Damar until DCS was able to 

locate a group home closer to Mother’s residence in Miami County. The juvenile court 

also ordered Mother to, among other things, continue in autism education classes in order 

to gain an understanding of L.L’s needs.

DECISION

Mother does not challenge the sufficiency of the evidence used to support the 

CHINS determination but contends that the determination should be reversed because her 

due process rights were violated during the CHINS proceeding when the juvenile court 

failed to follow certain statutory procedures. 

“The Due Process Clause of the United States Constitution prohibits state action 

that deprives a person of life, liberty or property without a fair proceeding.” Lawson v. 

Marion Cnty. Office of Family & Children, 835 N.E.2d 577, 579 (Ind. Ct. App. 2005). 

“Although due process has never been precisely defined, the phrase expresses the 

requirement of ‘fundamental fairness.’” Id. (quoting In re M.M., 733 N.E.2d 6, 10 (Ind. 
5

Ct. App. 2000)). Due process requires notice, an opportunity to be heard, and an 

opportunity to confront witnesses. In re M.L.K., 751 N.E.2d 293, 295–96 (Ind. Ct. App. 

2001).

1. Dispositional Hearing

Mother first argues that the juvenile court denied her procedural due process 

because it did not hold the dispositional hearing within the statutorily prescribed time 

limit. Indiana Code section 31-34-19-1 provides that a “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[.]” (Emphasis added). Mother contends that her due 

process rights were violated when the dispositional hearing was held more than thirty 

days after the juvenile court determined that L.L. was a CHINS. 

“It is well established that we may consider a party’s constitutional claim waived 

when it is raised for the first time on appeal.” Hite v. Vanderburgh Cnty. Office of 

Family & Children, 845 N.E.2d 175, 180 (Ind. Ct. App. 2006) (citing McBride v. Monroe 

Cnty. Office of Family & Children, 798 N.E.2d 185, 194 (Ind. Ct. App. 2003)). Here, our 

review of the record reveals that Mother never raised an objection before the juvenile

court regarding the timing of the dispositional hearing.3 Thus, Mother’s argument that 

her due process rights were violated by the timing of the dispositional hearing is waived. 

See, e.g., McBride, 798 N.E.2d at 194-95 (holding that the mother had waived her 

 

3 During the dispositional hearing, Mother’s counsel merely commented that the dispositional hearing 

should have been held within thirty days of the CHINS determination, but Mother did not otherwise 

object to the timing of the dispositional hearing or move to dismiss the CHINS determination based on 

the timing of the hearing.
6

constitutional challenge to alleged deficiencies in the CHINS proceedings by failing to 

object during the CHINS proceedings or argue them in termination proceeding). 

Waiver notwithstanding, Mother’s due process rights were not violated by the 

delay in the dispositional hearing. In Parmeter v. Cass Cnty. Dep’t of Child Servs., 878 

N.E.2d 444, 448 (Ind. Ct. App. 2007), reh’g denied, our court held that the term “shall” 

in the dispositional hearing statute, Indiana Code section 31-34-19-1, was “directory” and 

“not mandatory.” We explained that:

A statute containing the term “shall” generally connotes a mandatory as 

opposed to a discretionary import. However, “shall” may be construed as 

directory instead of mandatory “to prevent the defeat of the legislative 

intent.” 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. 

Parmeter, 878 N.E.2d at 448 (internal citations omitted). Because the dispositional 

hearing statute does not contain any specific consequence for the failure to comply with 

the thirty-day time limit, we concluded that the “shall” as used in that statute was merely 

directory. Id. We further explained that 

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.

Id.
7

Here, the juvenile court held a fact-finding hearing in February 2011 and 

thereafter determined that L.L. was a CHINS. It is clear that the May 2011 dispositional 

hearing was held outside the thirty-day time limit set forth in the dispositional hearing 

statute. See I.C. § 31-34-19-1. Further, it is not disputed that the juvenile court initially 

set the matter for disposition in March 2011; however, counsel for DCS became ill, 

notified Mother’s counsel of such, and requested a continuance without objection from 

Mother’s counsel. Mother did not object to the delay of the dispositional hearing and has 

not shown how this delay deprived her of an opportunity to participate in the 

dispositional hearing or how she was otherwise prejudiced. Accordingly, we conclude 

Mother’s due process rights were not violated by the timing of the dispositional hearing. 

See, e.g., Parmeter, 878 N.E.2d at 448. 

2. Disposition Decree

Mother also argues that the juvenile court denied her procedural due process 

because the findings and conclusions in the dispositional decree were not sufficiently 

specific. Indiana Code section 31-34-19-10, which addresses findings and conclusions in 

a dispositional decree, provides:

(a) The juvenile court shall accompany the court’s dispositional decree with 

written findings and conclusions upon the record concerning the following:

(1) The needs of the child for care, treatment, rehabilitation, or 

placement.

(2) The need for participation by the parent, guardian, or custodian 

in the plan of care for the child.

(3) Efforts made, if the child is a child in need of services, to:
8

(A) prevent the child’s removal from; or

(B) reunite the child with; the child’s parent, guardian, or 

custodian in accordance with federal law.

(4) Family services that were offered and provided to:

(A) a child in need of services; or

(B) the child’s parent, guardian, or custodian; in accordance 

with federal law.

(5) The court’s reasons for the disposition.

(b) The juvenile court may incorporate a finding or conclusion from a 

predispositional report as a written finding or conclusion upon the record in 

the court’s dispositional decree.

Mother argues that her due process rights were violated because the juvenile 

court’s dispositional order failed to include a specific reference to subsection (a)(3), the 

efforts made to prevent L.L.’s removal or to reunite L.L. with Mother, as well as to 

subsection (a)(4), the family services offered to L.L. or to Mother. 

Here, the juvenile court expressly incorporated DCS’s predispositional report into 

its dispositional order, which it is permitted to do under Indiana Code section 31-34-19-

10(b). Our review of DCS’s ten-page predispositional report and three-page attachment 

reveals that it contains family history, background, and consultation with professionals,

efforts made by DCS prior to L.L.’s removal, and services and treatment options for 

Mother. Additionally, it is clear that the juvenile court did not make a wholesale 

adoption of DCS’s report and recommendations. For example, the juvenile court also 

made some specific recommendations of its own, such as transitioning L.L. to a group 
9

home closer to Mother’s residence so that Mother could participate more in L.L.’s care in 

an effort to eventually reunify L.L. with Mother. 

After review of the record before us, we conclude that the juvenile court’s 

dispositional order as a whole meets the statutory requirements of Indiana Code section 

31-34-19-10 and that there is no due process violation. See, e.g., McBride, 798 N.E.2d at 

196 (finding that juvenile court’s order incorporating predispositional report complied, as 

a whole, with dispositional order statute). 

Affirmed.

BAKER, J., and BAILEY, J., concur.