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Fri, 09 Jul 2010 22:09:43 +0000http://wordpress.org/?v=2.9.2enhourly1CHINS – In the Matter of A.G. and M.G., M.G. v. Hamilton County Dept. of Child Services
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http://www.severstorey.com/blog/chins-in-the-matter-of-ag-and-mg-mg-v-hamilton-county-dept-of-child-services-2/#commentsWed, 23 Apr 2008 20:12:26 +0000Philhttp://www.severstorey.com/blog/?p=13CHINSTrial 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.
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