IN RE: A.H. (Minor Child) (2023)

MEMORANDUM DECISION

[1] J.G. (“Mother”) appeals the trial court's finding of facts and conclusions of law determining that her daughter (“A.H.”) was a child in need of services (“CHINS”). We find that Mother's only raised issue—that the trial court erroneously held a fact-finding hearing outside the statutorily prescribed window of time—was not preserved for appeal. It is, thus, waived, and, given that it does not rise to the level of fundamental error, we affirm the trial court.

Facts and Procedural History

[2] The Department of Child Services (“DCS”) filed a petition alleging A.H. to be a CHINS on March 17, 2021. The petition was based upon allegations that Mother's boyfriend had solicited sexually explicit pictures from A.H. who was, at the time, thirteen years of age. Eight days later the trial court held an initial hearing and set the fact-finding hearing for April 26, 2021. On April 15, 2021, Mother filed a motion to continue the hearing,¹ which the trial court granted one week later.

[3] The new date for the fact-finding hearing was May 12, 2021. On May 10, 2021, however, Mother filed another motion for a continuance. Mother acknowledged that she had “waive[d] her right to the sixty (60) day, time frame for the factfinding hearing․”² Appellant's App. Vol. II p. 27. The trial court's subsequent order did not establish a new date, but rather, ordered “counsel to contact the court to reset.” Id. at 30. Neither party filed a motion seeking to reset the fact-finding hearing. On July 1, 2021, DCS filed a motion for an attorney status conference because it was “desiring to explore an Informal Adjustment regarding the allegations of this matter.” Id. at 33. The chronological case summary entry from the July 15, 2021, proceedings indicates that the “[p]arties waive time limit on fact-finding.” Appellee's App. Vol. II p. 7.

[4] Attempts to reach an informal adjustment apparently faltered, and, on August 17, 2021, DCS moved the trial court to set a new date for a fact-finding hearing. The new setting was November 17, 2021, but a week prior, DCS filed a motion to continue the hearing to a date which could accommodate all of the evidence. Mother did not object to the motion, which the trial court granted. The trial court set the fact-finding hearing for March 3, 2022. The record reflects that the trial court held the fact-finding hearing in five parts wherein it heard “partial evidence,” Appellee's App. Vol. II p. 15, over the course of seven months.³

[5] After the close of evidence, Mother filed for, and was granted, a motion for an extension of time to file proposed facts and findings. The trial court entered its findings of fact and conclusions of law on November 4, 2022, and adjudicated A.H. a CHINS. Mother now appeals.

Discussion and Decision

[6] Mother raises a lone issue: whether the trial court abused its discretion by holding the fact-finding hearing outside the statutory framework. In relevant part, Indiana Code section 31-34-11-1 provides:

(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.

[7] Trial Rule 53.5, however, provides: “Upon motion, trial may be postponed or continued in the discretion of the court, and shall be allowed upon a showing of good cause established by affidavit or other evidence.” Our Supreme Court has recognized that the Trial Rule trumps the statute. In Matter of M.S. our Supreme Court noted that “trial courts are afforded considerable discretion in ruling on motions for continuances, including determining whether the moving parties have shown good cause for requesting a continuance.” 140 N.E.3d 279, 285 (Ind. 2020) (citing F.M. v. N.B, 979 N.E.2d 1036, 1039-40 (Ind. Ct. App. 2012)) (emphasis added). “[T]he decision to grant or deny a continuance turns on the circumstances present in a particular case․” Id. (citing Blackford v. Boone County Area Plan Com'n, 43 N.E.3d 655, 664 (Ind. Ct. App. 2015)).

[8] At a certain point in the proceedings, however, the continuances and delays no longer relied on the requisite finding of good cause. The parties engaged in a joint but failed effort to reach an informal agreement. The trial court left one of the reset dates as an open-ended matter, simply requesting that the parties contact the court to arrange a new date. And eventually, the trial court found that the parties had waived the statutory deadline requirements and ceased requiring motions for continuance, or findings of good cause altogether.⁴

[9] Nevertheless, we agree with DCS with respect to waiver. Below, Mother did not make a motion to dismiss on the basis that the trial court exceeded the statutory timeframe prior to a merits determination. Failure to make such a motion is tantamount to a failure to preserve the issue for review. Accordingly, the matter is waived. See Matter of E.T., 152 N.E.3d 634, 639 (Ind. Ct. App. 2020) (citing Matter of N.C., 83 N.E.3d 1265, 1267 (Ind. Ct. App. 2017) (“Because Father failed to file motions to dismiss, his argument is waived.”); see also Matter of J.S., 130 N.E.3d 109, 113 (Ind. Ct. App. 2019) (“We readily reject the contention that the timeliness requirement of Indiana Code Section 31-34-11-1 provides grounds for setting aside a CHINS adjudication once it has been entered for the benefit and protection of a child.”); cf. Matter of Ar.B., 199 N.E.3d 1232, 1240 (Ind. Ct. App. 2022) (concluding that a party waives its challenge to the timeliness of a dispositional hearing by failing to file a motion to dismiss in the context of Indiana Code section 31-34-19-1).

[10] Mother appears to recognize that she has waived the issue, given that her primary argument is that the trial court committed fundamental error when it held the fact-finding hearing outside the prescribed timeframe. Fundamental error is a doctrine that supplants our usual standard of review where a litigant fails to preserve an issue for appeal. “The fundamental error exception is extremely narrow․” McKinley v. State, 45 N.E.3d 25, 28 (Ind. Ct. App. 2015) (citing Isom v. State, 31 N.E.3d 469, 490 (Ind. 2015), cert. denied), trans. denied. “The error must be ‘so prejudicial to the rights of a defendant a fair trial is rendered impossible.’ ” Id. (quoting White v. State, 846 N.E.2d 1026, 1033 (Ind. Ct. App. 2006), trans. denied.) This exception applies “ ‘only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.’ ” Isom, 31 N.E.3d at 490 (quoting Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013), trans. denied). “The error claimed must either ‘make a fair trial impossible’ or ‘constitute clearly blatant violations of basic and elementary principles of due process.’ ” Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (quoting Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009)).

[11] We have rejected claims of fundamental error in precisely this context already, and we decline the invitation to depart from that position. Just as in Matter of E.T., Mother here “had both factfinding and dispositional hearings, during which [s]he was represented by counsel, and was provided with a meaningful opportunity to contest the CHINS allegation.” 152 N.E.3d at 640. Mother argues that “[b]y wrongfully delaying the fact-finding hearing in this case on numerous occasions and basically ignoring statutory precedent, the Juvenile Courts [sic] error is so egregious and abhorrent to fundamental due process that the trial judge should or should not have acted, thus committing fundamental error.” Appellant's Br. p. 10. Cogency concerns of that proposition notwithstanding, Mother fails to explain why, which is to say, she does not identify any prejudice that she has suffered as a result of the multiple delays. Error resulting in no prejudice is, by definition, not fundamental. Mother's lone issue, therefore, suffers from a fatal defect. Accordingly, we affirm the trial court.

[12] Affirmed.

FOOTNOTES

1.   The CHINS proceedings were combined with custody proceedings. A.H.’s father objected to this motion for a continuance, as well as to a separate motion for a continuance filed by Mother's boyfriend.

2.   This is a reference to Indiana Code section 31-34-11-1(a).

3.   There were hearings on March 10, May 23, July 21, August 4, and September 21 of 2022. It is unclear exactly why, as Mother has not provided a transcript. The chronological case summary does suggest, however, that there were some ongoing discovery issues during this timeframe.

4.   “We hold today that, unlike the sixty-day deadline imposed by Indiana Code section 31-34-11-1(a) that may be waived by consent of the parties, the 120-day deadline contemplated by subsection 31-34-11-1(b) may be enlarged only if a party shows good cause for a continuance.” M.S., 140 N.E.3d at 285 (emphasis added).

Foley, Judge.

Vaidik, J., and Tavitas, J., concur.