Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018 Page 1 of 7

ATTORNEY FOR APPELLANTS 

Scott A. Norrick

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

David E. Corey

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of: J.R. and M.R., 

Children in Need of Services, 

D.R. (Mother) and M.R.

(Father),

Appellants-Respondents,

v.

Indiana Department of Child 

Services,

Appellee-Petitioner.

April 17, 2018

Court of Appeals Case No.

80A02-1704-JC-806

Appeal from the Tipton Circuit

Court

The Hon. Thomas R. Lett, Judge

Trial Court Cause Nos. 

80C01-1609-JC-144, 

80C01-1609-JC-145

Bradford, Judge.
Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018 Page 2 of 7

Case Summary

[1] Appellants-Respondents D.R. (“Mother”) and M.R. (“Father”) (collectively, 

“Parents”) appeal from the juvenile court’s determination that J.R. and M.R. 

(“the Children”) are children in need of services (“CHINS”). Parents contend 

that the juvenile court erred in denying their motion to dismiss the CHINS

petitions filed by the Appellee-Petitioner the Indiana Department of Child 

Services (“DCS”), which motion was made on the ground that the fact-finding 

hearing was not completed within the statutorily-required sixty-day period after 

the filing of the CHINS petitions. Because we agree with Parents, we reverse 

the judgment of the juvenile court and remand with instructions to dismiss 

DCS’s CHINS petitions without prejudice. 

Facts and Procedural History

[2] On or about September 23, 2016, Tipton County DCS received a report that 

Father was abusing Children, their older sibling, and Mother. On September 

29, 2016, DCS filed its petitions to have M.R. and J.R. declared to be CHINS. 

On November 22, 2016, the juvenile court began a factfinding hearing. On 

November 29, 2016, the juvenile court ordered that the continued factfinding 

hearing be completed on February 6, 2017. On December 27, 2016, Parents 

objected to the continuance of the factfinding hearing outside the sixty-day limit 

imposed by Indiana Code section 31-34-11-1. The juvenile court overruled the 

objection. On January 11, 2017, Parents moved to dismiss, arguing that the 

factfinding hearing had not been completed within the required sixty days 
Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018 Page 3 of 7

following the filing of the CHINS petitions. On February 6, 2017, the juvenile 

court denied Parents’ motion to dismiss and completed the continued 

factfinding hearing. 

[3] On February 23, 2017, the juvenile court issued orders in which it found the 

Children to be CHINS. On March 14, 2017, the juvenile court entered a 

dispositional order. On April 10, 2017, Parents filed their notice of appeal from 

the CHINS determinations. On July 10, 2017, Parents filed a Trial Rule 60(B) 

motion to set aside the juvenile court’s judgment, which motion the juvenile 

court denied on July 20, 2017. On August 10, 2017, Parents filed their notice of 

appeal from the juvenile court’s denial of their motion for relief from judgment. 

Parents’ two appeals were consolidated by order of this court. 

Discussion and Decision

[4] Parents contend that the juvenile court erred in denying their motion to dismiss 

the CHINS petitions on the basis that the factfinding hearing was not 

completed within the required sixty days, the juvenile court lacked authority to 

enter a CHINS finding due to the failure to complete factfinding within sixty 

days, and the evidence is insufficient to support the juvenile court’s CHINS 

determination. Because we conclude that Parents’ first claim is dispositive, we 

need not address their others. 
Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018 Page 4 of 7

Motion to Dismiss

[5] Parents argue that the juvenile court erred in denying their motion to dismiss 

pursuant to Indiana Code section 31-34-11-1, which provides, in relevant part, 

as follows:

(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.

(Emphases added). 

[6] This case turns on interpretation of the above provisions. An issue of statutory 

construction presents a question of law which is reviewed de novo on appeal. 

State v. Eichorst, 957 N.E.2d 1010, 1012 (Ind. Ct. App. 2011), trans. denied; 

Chrysler Group, LLC v. Review Bd. of the Ind. Dep’t. of Workforce Dev., 960 N.E.2d 

118, 124 (Ind. 2012). Pursuant to this standard of review, this Court owes no 

deference to the juvenile court’s statutory interpretation. Morgan Cnty. v. 

Ferguson, 712 N.E.2d 1038, 1043 (Ind. Ct. App. 1999); Art Country Squire, L.L.C. 

v. Inland Mortg. Corp., 745 N.E.2d 885, 889 (Ind. Ct. App. 2001). 
Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018 Page 5 of 7

[7] In a 2007 case addressing a similar argument made pursuant to the sixty-day 

limit in a previous version of Indiana Code section 31-34-11-1, we concluded 

that “‘shall’ as used in Indiana Code Section[] 31-34-11-1 ... [wa]s 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 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.” Id. We noted 

the lack of specific consequences detailed in statute and that the CHINS statutes 

“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. 

(citations omitted). We ultimately concluded that “a mandatory construction 

[of ‘shall’] 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. Be that as it may, we agree with Parents that Parmeter has 

been superseded by legislative revision to Indiana Code section 31-34-11-1 and 

is no longer good law on this point. 

[8] When Parmeter was decided, subsection 31-34-11-1(d) did not yet exist, being 

added in a 2012 revision. Subsection (d) cures one of the ambiguities of the 

statute (as identified by Parmeter) by spelling out the adverse consequence for 

failing to complete a factfinding hearing within the sixty-day period. At the 
Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018 Page 6 of 7

same time, while it is true that “[t]he word ‘shall’ may be given the meaning of 

the word ‘may’ in order to prevent the defeat of the legislative intent[,]” Wysong 

v. Auto. Underwriters, 204 Ind. 493, 504, 184 N.E. 783, 787 (1933), the 2012 

revision leaves very little room for doubt regarding legislative intent. Rather 

than changing “shall” to “may” or adding provisions allowing for continuances 

for good cause, the General Assembly instead added subsection (d). Simply 

put, there is no longer any reason to believe that the General Assembly intends 

Indiana Code section 31-34-11-1 to mean anything other than what its clear 

language indicates, i.e., that a factfinding hearing shall be completed within 

sixty days of the filing of a CHINS petition and that failure to do so is grounds 

for dismissal. Parmeter is no longer good law on this point, and we conclude 

that the juvenile court erred in denying Parents’ motion to dismiss. 

[9] While it may be that in many cases DCS would refile, it is important to note 

that it would not be able to just simply refile the same CHINS petition; it still 

has to get approval to refile from the juvenile court, and this can only be given 

after a probable cause determination:

The juvenile court shall do the following:

(1) Consider the preliminary inquiry and the evidence of probable 

cause that is contained in the report of the preliminary inquiry or 

an affidavit of probable cause.

(2) Authorize the filing of a petition if the court finds probable 

cause to believe that the child is a child in need of services.

Ind. Code § 31-34-9-2. 
Court of Appeals of Indiana | Opinion 80A02-1704-JC-806 | April 17, 2018 Page 7 of 7

[10] We note that “[a] CHINS finding should consider the family’s condition not 

just when the case was filed, but also when it is heard.” In re S.D., 2 N.E.3d 

1283, 1290 (Ind. 2014). Therefore, should DCS refile, it would not be able to 

rely solely on the evidence that was admitted at the original CHINS factfinding; 

it would have to also submit new evidence regarding the conditions at the 

current time.

[11] Moreover, if we were to allow the deadline to be ignored here, trial courts could 

habitually set these matters outside the time frame and there would be no 

consequence whatsoever. We believe that any change (including the imposition 

of any more severe consequences) has to come from the General Assembly, and 

unless/until that occurs, we are bound to apply the statute as written. 

Consequently, we reverse the judgment of the juvenile court and remand with 

instructions to dismiss DCS’s CHINS petitions without prejudice. 

[12] We reverse the judgment of the juvenile court and remand with instructions. 

Baker, J., and Kirsch, J., concur.