Court of Appeals of Indiana | Memorandum Decision 47A01-1604-JC-765 | September 7, 2016 Page 1 of 8

MEMORANDUM DECISION

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.

ATTORNEYS FOR APPELLANT

Daniel Dixon

Debra S. Andry

Lawrence County Public Defender 

Agency

Bedford, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Robert J. Henke

Abigail R. Recker

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of: J.B., A Child in 

Need of Services:

S.M. (Mother),

Appellant-Respondent,

v.

The Indiana Department of 

Child Services,

Appellee-Petitioner.

September 7, 2016

Court of Appeals Case No.

47A01-1604-JC-765

Appeal from the Lawrence Circuit 

Court

The Honorable Andrea K. 

McCord, Judge

The Honorable John M. Plummer, 

III, Referee

Trial Court Cause No.

47C01-1507-JC-289

Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 47A01-1604-JC-765 | September 7, 2016 Page 2 of 8

Case Summary

[1] On March 9, 2016, J.B. (“Child”) was determined to be a Child in Need of 

Services (“CHINS”) after Appellee-Petitioner, the Department of Child 

Services (“DCS”), received reports that the Child was the victim of abuse and 

neglect. Appellant-Respondent, S.M. (“Mother”), appeals from this 

determination, arguing that the juvenile court erred in denying her motion to 

dismiss the CHINS proceedings. Specifically, Mother claims that the CHINS 

proceedings should have been dismissed, without prejudice, because the 

juvenile court failed to conduct a fact-finding hearing within the statutorily 

allotted time frame. Concluding that the juvenile court did not err in denying 

Mother’s motion to dismiss, we affirm the judgment of the juvenile court. 

Facts and Procedural History

[2] DCS became involved with Mother, J.M. (“Step-Father”), and the Child after 

receiving a report that Mother and Step-Father neglected and physically abused 

the Child. The Child was born on February 28, 2006. The Child’s biological 

father reportedly died in March of 2015. 

[3] On July 29, 2015, DCS filed a petition alleging that the Child was a CHINS. 

DCS attached a number of photographs to its petition which documented 

bruising suffered by the Child as a result of the alleged abuse. Also on July 29, 

2015, the trial court conducted an initial hearing after which it formally 
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removed the Child from Mother’s care and placed the Child with her maternal 

grandmother. 

[4] After a number of continuances, the parties agreed that the fact-finding hearing 

would be held on December 18, 2015. One day before the scheduled factfinding hearing, on December 17, 2015, Mother filed a motion to dismiss the 

CHINS proceedings, without prejudice. On December 18, 2015, Step-Father 

moved for a continuance of the fact-finding hearing. In making these motions, 

both Mother and Step-Father alleged that DCS had failed to respond to certain 

discovery requests. The trial court conducted a hearing on Mother’s and StepFather’s motions, after which it denied Mother’s motion to dismiss and granted 

Step-Father’s request for a continuance. The trial court also set a deadline by 

which DCS was to comply with all remaining discovery requests and scheduled 

the matter for a fact-finding hearing on January 8, 2016. 

[5] The trial court conducted the fact-finding hearing on January 8, 2016, after 

which it adjudicated the Child to be a CHINS. The trial court subsequently 

held a dispositional hearing after which it ordered Mother and Step-Father to 

participate in certain services. This appeal follows.

Discussion and Decision

[6] On appeal, Mother argues that the juvenile court erred in denying her motion to 

dismiss the underlying CHINS proceedings. Specifically, Mother claims that 

the CHINS proceedings should have been dismissed, without prejudice, 
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because the juvenile court failed to conduct a fact-finding hearing within the 

time allotted in Indiana Code section 31-34-11-1. For its part, DCS argues that 

the juvenile court did not err in denying Mother’s motion to dismiss. 

[7] Indiana Code section 31-34-11-1 provides in relevant part:

(a) Except as provided in subsection (b), unless the allegations of 

a petition have been admitted, the juvenile court shall complete a 

fact[-]finding 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 [Indiana Code Chapter] 31-34-9.

(b) The juvenile court may extend the time to complete a fact[-

]finding 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 fact[-]finding 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.

(Emphasis added).

[8] In Parmeter v. Cass County Department of Child Services, 878 N.E.2d 444, 448 (Ind. 

Ct. App. 2007), we acknowledged that the use of the term “‘shall’ generally 

connotes a mandatory as opposed to a discretionary import.” However, we 

observed that the term “‘shall’ may be construed as directory instead of 

mandatory to prevent the defeat of the legislative intent.” Id. (internal 

quotation 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 
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purpose.” Id. In considering whether the term “shall” connoted a mandatory 

or directory import, we noted that Indiana Code section 31-34-11-1 used the 

term “shall” when setting a deadline for holding a fact-finding hearing, did not 

specify any adverse consequence for failing to comply with the time limit, and 

expressly provides for the extension of the time limit when all parties consent. 

Id. We also noted 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....’” Id. (quoting Ind. Code 

§ 31-10-2-1(4), (6)). We further noted that “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[.]” Id. For these reasons, we concluded that the term 

“shall,” as used in Indiana Code Section Indiana Code section 31-34-11-1, is 

directory and not mandatory. Id. In reaching this conclusion we stated that 

“[i]f 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.” Id. One possible absurd and unjust 

result could foreseeably include putting children at considerable risk if the 

allegations alleged in the CHINS petition, such as the ones in this case, are 

serious and meritorious.

[9] In the instant matter, the parties, including Mother, agreed that the fact-finding

hearing would be conducted on December 18, 2015, or 142 days after DCS filed 
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the underlying CHINS petition. On December 17, 2015, one day before the 

scheduled fact-finding hearing, Mother filed a motion to dismiss the CHINS 

action without prejudice. In this motion, Mother claimed that (1) DCS had 

failed to respond to certain discovery requests; (2) as a result of DCS’s failure, 

her counsel could not adequately prepare for the fact-finding hearing; and (3) 

any further continuance of the fact-finding would bring the matter outside the 

time limits set forth in Indiana Code section 31-34-11-1. Mother’s motion 

acknowledged that the agreed upon date of the scheduled fact-finding hearing 

was 142 days after the date that the underlying CHINS petition was filed. It did 

not, however, explain why a further delay outside of the timeframe set forth in 

Indiana Code section 31-34-11-1 would warrant dismissal of the CHINS 

proceedings when the agreed upon date of December 18, 2015, did not. 

[10] In considering Mother’s motion, the trial court indicated that it seemed that in 

seeking dismissal of the underlying CHINS proceedings, Mother was trying to 

“un-waive a waiver.” Tr. p. 41. The trial court went on to explain that it 

believed that Mother “waived [the] remedy of dismissal” by agreeing to a date 

for the fact-finding hearing that was not within the time frame set forth in 

Indiana Code section 31-34-11-1 and that she was “now ... asking to go back 

and say, Okay, [I’m] not waiving that now.” Tr. p. 41. In finding that Mother 

could not “un-waive” her waiver, the trial court stated “[b]ut once it’s waived, 

it’s waived.” Tr. p. 41. The trial court also noted that any issues with discovery 

should have been addressed pursuant to Indiana Trial Rule 37, and, given the 

serious nature of the allegations of abuse, found that continued removal from 
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Mother’s care pending resolution of the CHINS proceedings was in the Child’s 

best interest. The trial court denied Mother’s motion to dismiss, set a deadline 

by which DCS was required to comply with any remaining discovery requests, 

and scheduled the fact-finding hearing for January 8, 2016, an additional delay 

of only three weeks.

[11] On appeal, Mother argues that she suffered harm and her parental rights were 

put at risk as a result of the trial court’s denial of her motion to dismiss. 

Specifically, Mother claims that “the trial court failed to properly balance the 

interests of the State with [her] interests.” Appellant’s Br. p. 13. Mother asserts 

that the trial court’s focus on the potential harm to the Child if the CHINS 

proceedings were dismissed was misplaced because DCS could have 

immediately re-filed the CHINS petition and requested immediate detention of 

the Child. Mother also asserts that the additional delay in conducting the factfinding hearing put her at risk of having a reduced amount of time to complete 

any ordered services before DCS could seek the termination of her parental 

rights. 

[12] Upon review, we conclude that Mother has failed to demonstrate both that the 

trial court erred in considering the Child’s best interests when ruling on 

Mother’s motion and that she was prejudiced by the additional three-week 

delay in the CHINS proceedings. In fact, we note that if the trial court had

granted Mother’s motion to dismiss, given the serious nature of the abuse 

allegations, DCS would undoubtedly have immediately refiled the CHINS 

proceedings, leading to an even longer delay in services being offered to the 
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parties. As such, any future reunification of the Child with her Mother would

have likewise been delayed as such reunification would not have occurred prior 

to Mother completing certain services. In addition, Mother has pointed to 

nothing in the record that would suggest that DCS would not take the 

additional three-week delay into consideration before potentially filing any 

subsequent motions that might affect Mother’s parental rights. 

[13] Mother herself agreed to waive the time limits set forth in Indiana Code section 

31-34-11-1 when she agreed to the December 18, 2015 fact-finding hearing date. 

The additional three-week delay before the hearing was ultimately conducted 

seems rather inconsequential when compared to the likely much longer delay 

which would have occurred before a fact-finding hearing could be conducted if 

the matter was dismissed and then re-filed. As such, we conclude that requiring 

the trial court to have granted Mother’s motion to dismiss would have led to an 

absurd and unjust result. The trial court, therefore, did not err in denying 

Mother’s motion to dismiss. 

[14] The judgment of the trial court is affirmed.

Pyle, J., and Altice, J., concur.