Tavitas, J.
Case Summary
D.W. (“Father”) appeals the trial court’s determination that his children, K.W. and R.W. (collectively, the “Children”), are children in need of services (“CHINS”). Father contends that: (1) the trial court erred by denying Father’s two motions to dismiss for failure to complete the fact-finding and dispositional hearings within the statutory time deadlines; and (2) the evidence is insufficient to sustain the trial court’s conclusion that the Children are CHINS. Finding that the fact-finding hearing and dispositional hearing were continued for good cause pursuant to Indiana Trial Rule 53.5 and that the evidence supports the trial court’s conclusion that the Children are CHINS, we affirm.
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Father argues that he never agreed to a continuance of the fact-finding hearing. In Matter of M.S., 140 N.E.3d 279 (Ind. 2020), our Supreme Court addressed the statutory deadlines of Indiana Code Section 31-34-11-1. There, the parents waived the requirement that the fact-finding hearing be completed not more than sixty days after the CHINS petition was filed. The mother, however, filed a motion to dismiss when the hearing was not completed within “the statutorily imposed 120-day limit” (the initial sixty-day requirement plus the additional sixty days where the parties consent). M.S., 140 N.E.3d at 282.
In addressing the trial court’s denial of the motion to dismiss, the Court noted that, “to the extent a statute is at odds with our [Rules of Trial Procedure], the rule governs” on matters of procedure. Id. at 284…Accordingly, the Court held 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.” Id. at 285.
Based upon M.S. and Trial Rule 53.5, which provides, in relevant part: “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,” the trial court here had authority to grant a continuance of the factfinding hearing for good cause. Although the trial court’s specific reasoning does not appear in its written order, it appears that trial court granted a continuance due to delays caused by the COVID-19 pandemic, Father’s failure to appear for the August hearing, and Father’s request for new counsel. Father, however, has not included in the record for appeal a transcript of the August 14, 2020 hearing in which the DCS moved for a continuance and the trial court found good cause for a continuance.
Undisputedly, the trial court’s written orders note that it found good cause for a continuance. Although Father contends that DCS did not provide “affidavits or evidence supporting their oral request for a continuance,” Father provides no support for this assertion because he has not provided the transcript for that hearing. See, e.g., Kocher v. Getz, 824 N.E.2d 671, 675 (Ind. 2005) (“The defendant does not provide any transcript of the trial court’s hearing . . . . We have only the assertions in the parties’ filed motions, responses, and attachments. Upon this record, we cannot find that the trial court abused its discretion.”). Father has failed to meet his burden, and we cannot say the trial court abused its discretion by finding good cause for continuing the fact-finding hearing.
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At a January 29, 2021 hearing, the trial court found that the Children are CHINS and noted that an order regarding the fact-finding hearing would follow. The trial court’s written order regarding the January 29th hearing also provided: “[Father’s Counsel] objects to the disposition being set out 30 days. Court finds good cause to go outside the 30-day disposition due to Covid, transfer of new systems and docket congestion.” Appellant’s App. Vol. III p. 88. The trial court advised of a medical procedure that would also delay the proceedings. The trial court then set the dispositional hearing for March 12, 2021. On March 10, 2021, Father filed a second motion to dismiss the CHINS proceedings based upon Indiana Code Section 31-34-19-1, which the trial court denied.
Father does not challenge the trial court’s finding of good cause. Rather, Father argues that our Supreme Court’s decision in M.S. regarding the application of Trial Rule 53.5’s continuances for good cause does not apply to the deadlines for dispositional hearings set forth in Indiana Code Section 31-34- 19-1. According to Father, Trial Rule 53.5 can only apply to trials, and the dispositional hearing is not a “trial.” [Footnote omitted.] This argument, however, is inconsistent with our Supreme Court’s determination in M.S. that Rule 53.5 applied to a CHINS fact-finding hearing, which is not a trial. Just like a CHINS fact-finding hearing, a dispositional hearing may also be an evidentiary hearing. See Ind. Code § 31-34-19-1.3(b) (requiring that the parents be given “an opportunity to be heard”); In re T.N., 963 N.E.2d 467, 469 (Ind. 2012) (noting that a “contested dispositional hearing” was held). Applying Rule 53.5 to a dispositional hearing is, indeed, more strongly justified than applying it to a CHINS fact-finding hearing, because, unlike a CHINS fact-finding hearing, a dispositional hearing results in a dispositional decree which renders the cause final and thereby an appealable order. See In re D.J. v. Indiana Dep’t of Child Servs., 68 N.E.3d 574, 578 (Ind. 2017) (holding that a CHINS determination is not a final, appealable order; the trial court is still required to hold a dispositional hearing and issue written findings and conclusions in a dispositional decree). The application of Rule 53.5 in CHINS fact-finding hearings but not dispositional hearings would be contradictory.
Pursuant to our Supreme Court’s holding in M.S., Trial Rule 53.5 trumps Indiana Code Section 31-34-19-1 on matters of procedure. Accordingly, Trial Rule 53.5 allows an extension of the statutory deadline to conduct a CHINS dispositional hearing where “good cause” is shown. The trial court here found good cause for a continuance because of the COVID-19 pandemic, transfer of new systems to Odyssey, docket congestion, and the trial court judge’s surgery. We recognize the unfortunate substantial delay here between the filing of the CHINS petition and the dispositional hearing caused mainly by the COVID-19 pandemic. Father, however, fails to argue that these reasons amount to insufficient good cause. Accordingly, the trial court did not err by denying Father’s second motion to dismiss.
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Conclusion
The trial court properly denied Father’s motions to dismiss the CHINS proceedings, and the evidence supports the trial court’s conclusion that the Children are CHINS. Accordingly, we affirm.
Affirmed.
Mathias, J., and Weissmann, J., concur