A.T. v. Ind. Dep't of Child Servs. (In re E.T.)

152 N.E.3d 634

In the MATTER OF: E.T. (Minor Child), a Child in Need of Services;

A.T. (Father), Appellant-Respondent,

v.The Indiana Department of Child Services, Appellee-Petitioner.

Court of Appeals Case No. 20A-JC-312

Court of Appeals of Indiana.

FILED July 31, 2020

Attorney for Appellant: Cara Schaefer Wieneke, Wieneke Law Office LLC, Brooklyn, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, Indiana

Pyle, Judge.

Statement of the Case

[1] A.T. ("Father") appeals the trial court's determination that his son, E.T. ("Child"), is a Child in Need of Services ("CHINS") based on a petition filed by the Department of Child Services ("DCS"). Father argues that trial court: (1) committed fundamental error when it held his factfinding and dispositional hearings outside the statutory timeframes; and (2) violated his due process rights when it determined that Child was a CHINS in a separate proceeding involving the Child's mother ("Mother") prior to giving him an opportunity to be heard.¹ Concluding that: (1) Father has failed to establish fundamental error regarding his statutory compliance argument; and (2) his due process rights were not violated, we affirm the CHINS determination.

[2] We affirm.

Issues

1. Whether the trial court committed fundamental error by conducting Father's factfinding and dispositional hearings outside of the statutory timeframes.

2. Whether the trial court violated Father's due process rights.

Facts

[3] Mother and Father are the parents of Child, who was born in September 2018. On January 9, 2019, DCS received a report alleging that a domestic violence incident had occurred the previous day between Mother and Father (collectively "Parents") in front of Child. The following day, Family Case Manager Kilee Myers ("FCM Myers") visited Mother to investigate the allegations. FCM Myers observed that Mother had "a black eye, busted lip[,] and large bruises on her arms." (App. Vol. 2 at 18). Child was not immediately removed, rather DCS created a safety plan with Mother. Father, who was arrested as result of the incident, was charged with Level 6 felony domestic battery and Class B misdemeanor false informing.

[4] On February 5, 2019, following the report and investigation of domestic violence between Parents, the trial court authorized DCS to file a petition alleging that Child was a CHINS. Specifically, DCS alleged that: (1) Child was a victim of neglect due to exposure to domestic violence; (2) Parents had significant alcohol abuse issues; and (3) Father remained incarcerated due to the domestic violence incident. Child was initially placed with Father's brother, but, after a few weeks, Father's brother requested that DCS remove Child from his home. Child was subsequently placed in a licensed foster home.

[5] Following the initial hearing, DCS filed a motion to have separate factfinding hearings for each parent because "Mother ha[d] secured a restraining order against Father and [was] fearful of being around him." (App. Vol. 2 at 39). The trial court granted the motion and scheduled Father's factfinding hearing for March 26, 2019 and Mother's for April 2, 2019.

[6] On March 25, 2019, Father's counsel filed a motion to continue the factfinding hearing. The motion stated that Father "waive[d] the 60[-]day requirement for [factfinding] hearing." (Supp. App. at 2). The trial court granted the motion and rescheduled Father's factfinding hearing for April 30, 2019.

[7] In early April 2019, as a result of the January incident, Father pled guilty to an added charge of Class B misdemeanor disorderly conduct in exchange for the State's dismissal of the original charges. Later that month, Father was arrested again and charged with committing Class A misdemeanor battery against Mother. Father pled guilty as charged.

[8] Meanwhile, the trial court held Mother's April factfinding hearing. At the hearing, she admitted that Child was a CHINS. The trial court adjudicated Child a CHINS and held a dispositional hearing on April 23, 2019. Thereafter, the trial court issued a dispositional order regarding Mother.

[9] On April 29, 2019, the day before Father's factfinding hearing, Father's counsel filed another motion to continue the factfinding hearing. This motion stated that Father "waive[d] the statutory time requirement for [factfinding] hearing." (Supp. App. at 5). The trial court granted the motion and rescheduled the factfinding hearing for June 25, 2019.

[10] At the June 25 hearing, Father was not present, and his attorney, who had moved out of state without withdrawing from the case, also was not present. The trial court then appointed a new attorney for Father. In its order, the trial court stated that "to ensure [that counsel] has time to speak to his client, the court hereby continues this hearing to August 6, 2019[.]" (App. Vol. 2 at 83). Thereafter, the trial court, on its own motion, continued the August 6 hearing due to the unavailability of the judge and rescheduled the factfinding hearing for August 27, 2019. Father's counsel did not object. At the August 27 hearing, the trial court, by agreement of the parties, scheduled a status hearing for September 23, 2019. At the status hearing, the trial court scheduled Father's factfinding hearing for October 2019.

[11] On October 2, 2019, the trial court held Father's factfinding hearing. Father did not object to the date of the factfinding hearing or allege that it was outside the statutory timeframe. At the outset of the hearing, DCS requested that the trial court take judicial notice of Mother's admission that Child was a CHINS. In response, Father's counsel stated that "mother's admission is not father's admission and just because a ... child may be a CHINS as to mother does not mean that the child is a CHINS as to father as well." (Tr. Vol. 2 at 43-44). The trial court granted DCS' request and took judicial notice of Mother's admission.

[12] During the hearing, Family Case Manager Megan Butler ("FCM Butler") testified that she had been the case manager for Child since February 2019. She explained that, in January 2019, DCS had received a report regarding domestic violence in front of Child and alcohol abuse by both parents. She further explained that after Father had been released from jail in February 2019, he had participated in services, which included home-based case management, supervised visits, and random drug screens. FCM Butler further explained that Father had engaged in services until he was arrested in April 2019, and that he had failed to re-engage in services following his release from jail in July 2019. FCM Butler opined that it was not in Child's best interest to be in Father's care, explaining that:

[t]here has been such a significant history with him and [Mother], the lack of [Father] acknowledging that he has been any part of the domestic violence with [Mother]. He takes no responsibility for it and blames [Mother] for it. [Father] has also told me in the past that he does have an alcohol problem himself and he had talked about completing services because of that but has not done so. [Father] isn't steadily employed at this moment so I – I would be concerned for [Child] to go back to [Father] right now.

(Tr. Vol. 2 at 73).

[13] Father also testified at the hearing. He admitted that he had been arrested in January 2019 due to the domestic violence incident with Mother and that he had pled guilty to Class B misdemeanor disorderly conduct. He also admitted that he had been arrested again in April 2019 for committing Class A misdemeanor battery against Mother and had pled guilty to the charged offense. Father also detailed his criminal history, which included previous convictions for battery and criminal confinement against Mother. However, Father maintained that he was not a violent person.

[14] On November 8, 2019, the trial court issued another order adjudicating Child to be a CHINS. Thereafter, following a request by DCS, the trial court set Father's dispositional hearing for January 27, 2020, which was the same date as a previously scheduled permanency hearing. Father did not object to the scheduled date of the dispositional hearing. During the January 2020 combined hearing, Father did not object to the date of the hearing or allege that it was outside the statutory timeframe. At the hearing, DCS requested that Child's permanency plan as to both parents change to a termination of parental rights. However, the trial court ordered that the permanency plan change to termination as to Mother only. Following the dispositional hearing, the trial court issued a dispositional order that required Father to: (1) complete a domestic violence assessment and follow all recommendations; (2) complete Fatherhood Engagement; (3) participate in supervised visitations; (4) submit to random drug screens; and (5) not commit any acts of domestic violence. Father now appeals.

Decision

[15] Father raises two issues on appeal, arguing that the trial court: (1) committed fundamental error when it held his factfinding and disposition hearings outside the statutory timeframes; and (2) violated his due process rights by adjudicating Child a CHINS in a separate proceeding involving Mother without giving him an opportunity to be heard. We will address each argument in turn.

1. Factfinding and Dispositional Hearings

[16] Father argues that the trial court committed fundamental error when it failed to complete his factfinding and dispositional hearings within the timeframes set forth by INDIANA CODE §§ 31-34-11-1 and 31-34-19-1. In response, DCS argues that the fundamental error doctrine is not applicable because Father received a fair hearing and has failed to show substantial harm.

[17] Father's assertion requires that we examine the statutes setting forth the timeframes for holding factfinding and dispositional hearings. INDIANA CODE § 31-34-11-1, which governs factfinding hearings, provides:

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