Sever Storey Law Firm » Family Law

CHINS – In the Matter of A.G. and M.G., M.G. v. Hamilton County Dept. of Child Services

Phil — Wed, 23 Apr 2008 20:12:26 +0000

CHINSTrial Court May Lose Jurisdiction over CHINS Proceeding if Fails to Conduct Fact-Finding Hearing within Statutorily-Prescribed Time Limit for no Legitimate ReasonIn the Matter of A.G. and M.G., M.G. v. Hamilton County Dept. of Child Services, Appellate Panel: Judges Bradford, Barnes, and Crone. Appeal from the Hamilton County Circuit Court, Judith S. Proffitt, Judge. Hamilton County Department of Child Services (“HCDCS”) filed petitions on December 7, 2006, alleging that A.G. and M.G. were children in need of services (“CHINS”). At the initial hearing on January 29, 2007, Father denied the allegations brought against him by HCDCS. The trial court proceeded by setting a fact-finding hearing for March 1, 2007.On March 1, 2007, the court reset the hearing for April 23, 2007. On April 23, 2007, at the request of Father, who had just retained Tonny D. Storey of Sever-Storey LLP as counsel, the trial court reset the hearing for July 16, 2007. On May 11, 2007, however, the trial court continued the hearing to August 20, 2007. And finally, on August 20, 2007, the court reset the hearing for either October 2 or October 29, 2007.Mr. Storey filed a motion on behalf of Father to dismiss the CHINS petitions on August 23, 2007, arguing that the trial court now lacked subject matter jurisdiction because it had failed to conduct its fact-finding hearing within the time limit prescribed in Indiana Code 31-34-11-1. The Code states in relevant part that the 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 . . .” Mr. Storey asserted that “shall” connoted a mandatory instruction, one which the trial court had failed to follow. And thus, Mr. Storey argued that the court lacked subject matter jurisdiction.In response, the Court of Appeals cited to its recent decision in Parmeter v. Cass County Dept. of Child Services, in which the court held that “shall” may, in certain cases, “be construed as directory instead of mandatory ‘to prevent the defect of the legislative intent.’” 878 N.E.2d 444, 448 (Ind. Ct. App. 2007) (quoting In re Middlefork Watershead Conservatory Dist., 508 N.E.2d 574, 578 (Ind. Ct. App. 1987)). However, the Court distinguished Parmeter from the case in front of it. Unlike Parmeter, Father’s record did not contain any legitimate reasons why the fact-finding hearing was not held within the requisite time limits.Subsequently, the Court of Appeals reversed the trial court’s judgment, holding that because the trial court failed to conduct a fact-finding hearing within the time limit prescribed by statute, it lacked subject matter jurisdiction over the CHINS cases.

Hamilton County Department of Child Services – In the Matter of A.G. and M.G., M.G. v. Hamilton County Dept. of Child Services

Phil — Tue, 15 Apr 2008 08:54:51 +0000

Hamilton County Department of Child Services

Trial Court May Lose Jurisdiction over CHINS Proceeding if Fails to Conduct Fact-Finding Hearing within Statutorily-Prescribed Time Limit for no Legitimate Reason

In the Matter of A.G. and M.G., M.G. v. Hamilton County Dept. of Child Services, Appellate Panel: Judges Bradford, Barnes, and Crone. Appeal from the Hamilton County Circuit Court, Judith S. Proffitt, Judge.

Hamilton County Department of Child Services (“HCDCS”) filed petitions on December 7, 2006, alleging that A.G. and M.G. were children in need of services (“CHINS”). At the initial hearing on January 29, 2007, Father denied the allegations brought against him by HCDCS. The trial court proceeded by setting a fact-finding hearing for March 1, 2007.

On March 1, 2007, the court reset the hearing for April 23, 2007. On April 23, 2007, at the request of Father, who had just retained Tonny D. Storey of Sever-Storey LLP as counsel, the trial court reset the hearing for July 16, 2007. On May 11, 2007, however, the trial court continued the hearing to August 20, 2007. And finally, on August 20, 2007, the court reset the hearing for either October 2 or October 29, 2007.

Mr. Storey filed a motion on behalf of Father to dismiss the CHINS petitions on August 23, 2007, arguing that the trial court now lacked subject matter jurisdiction because it had failed to conduct its fact-finding hearing within the time limit prescribed in Indiana Code 31-34-11-1. The Code states in relevant part that the 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 . . .” Mr. Storey asserted that “shall” connoted a mandatory instruction, one which the trial court had failed to follow. And thus, Mr. Storey argued that the court lacked subject matter jurisdiction.

In response, the Court of Appeals cited to its recent decision in Parmeter v. Cass County Dept. of Child Services, in which the court held that “shall” may, in certain cases, “be construed as directory instead of mandatory ‘to prevent the defect of the legislative intent.’” 878 N.E.2d 444, 448 (Ind. Ct. App. 2007) (quoting In re Middlefork Watershead Conservatory Dist., 508 N.E.2d 574, 578 (Ind. Ct. App. 1987)). However, the Court distinguished Parmeter from the case in front of it. Unlike Parmeter, Father’s record did not contain any legitimate reasons why the fact-finding hearing was not held within the requisite time limits.

Subsequently, the Court of Appeals reversed the trial court’s judgment, holding that because the trial court failed to conduct a fact-finding hearing within the time limit prescribed by statute, it lacked subject matter jurisdiction over the CHINS cases.

Top 10 Things to Do When Preparing for a Custody Dispute

Phil — Mon, 31 Mar 2008 22:09:23 +0000

Child custody disputes can be an emotionally draining and time-consuming ordeal for you and your family. Your child(ren) will benefit the most if you and your spouse can amicably work out a custody arrangement. However, in the event that an arrangement may not be settled upon, the best thing to do when facing a potential custody dispute is to plan ahead. The following provide a list of ways to effectively prepare for what may await you:

1. Assess your motivations behind gaining custody of your child. Do you have your child’s best interests at heart in wanting to gain custody?

2. Organize your finances. A judge may find it more difficult to award custody of a child to a parent in sloppy financial shape.

3. Create a paper trail of communication between you and your spouse. This communication could be through emails or letters or a variety of other mediums. It may not seem important, but it may be valuable later in the custody proceedings for evidentiary purposes.

4. Be heavily involved in your child’s life on a continuing basis. Perhaps keep a journal of events.

5. Know your child’s school and activities.

6. Similar to organizing your finances, any possible skeletons in your closet (such as drug or alcohol addiction, mental illness, etc.) should be confronted. For example, if you require counseling for substance abuse, consider regularly attending awareness meetings.

7. Be sensitive to your child’s wishes. This will be a difficult time for them, and they will need the love, support, and guidance of their parents.

8. Realize the intrusive nature of custody proceedings, not just for you but for your child as well. For instance, sometimes a Guardian ad litem will be appointed by the court to observe interaction between you and your child.

9. Retain legal counsel. Custody disputes can sometimes be tricky and confusing areas of law to march through alone. An attorney should know the exact nuances of the law and should know how to efficiently resolve the situation.

10. Be honest with yourself and with your attorney. Leaving out details will only hurt your case in the long run.