Opinion
23A-MI-2850
06-20-2024
Craig Burney, Appellant-Petitioner v. Indiana Department of Child Services, Appellee-Respondent
ATTORNEY FOR APPELLANT Erik H. Carter Noblesville, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Shelby Superior Court The Honorable R. Kent Apsley, Judge Trial Court Cause No. 73D01-2306-MI-37
ATTORNEY FOR APPELLANT
Erik H. Carter Noblesville, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Indiana Attorney General
Evan Matthew Comer Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
ALTICE, CHIEF JUDGE
Case Summary
[¶1] Craig Burney sought judicial review of a substantiation of child abuse against him by the Indiana Department of Child Services (DCS). When Burney failed to timely file the agency record, the trial court granted DCS's motion to dismiss the action. On appeal, Burney argues that dismissal was unwarranted because the complete agency record was ultimately, though belatedly, filed and "the equities in this case show that the trial court abused its discretion" by granting the dismissal. Appellant's Reply Brief at 7. The trial court, however, had no discretion and properly dismissed the action pursuant to the bright-line rule established by our Supreme Court.
[¶2] We affirm.
Facts &Procedural History
[¶3] In December 2019, while out of state visiting their noncustodial mother, two of Burney's children disclosed allegations of sexual abuse against him. After an investigation, DCS substantiated the abuse allegations on April 17, 2020. Burney timely challenged DCS's finding of substantiation by filing a request for administrative appeal.
[¶4] The allegations also resulted in the State filing criminal charges against Burney in July 2020, causing the administrative proceedings to be stayed. Two years later, on July 6, 2022, a jury found Burney not guilty on four criminal counts, and the remaining counts were dismissed. Thereafter, the administrative proceedings promptly recommenced. After an evidentiary hearing before an administrative law judge (ALJ), the ALJ issued a recommendation in favor of Burney on April 11, 2023. That is, the ALJ recommended that the report of abuse against Burney be unsubstantiated. On May 16, 2023, however, the final agency authority rejected the ALJ's recommendation and affirmed DCS's substantiation of abuse.
[¶5] On June 15, 2023, Burney filed a petition for judicial review of the final agency action. Following the appointment of a special judge, the trial court issued an order on July 17, 2023, directing Burney to file the agency record within thirty days. Burney did not file the agency record within this extended deadline, so DCS moved to dismiss the petition for judicial review. The trial court granted the motion to dismiss on September 1, 2023.
[¶6] Ten days later, Burney moved to set aside the dismissal. He also filed the certified agency record on that date. The trial court initially set aside the dismissal. Then, after a renewed motion to dismiss by DCS and a hearing on the motion, the trial court again dismissed the action on October 30, 2023, based on Burney's failure to timely file the agency record as required by the Administrative Orders and Procedures Act (AOPA). Burney now appeals.
Discussion &Decision
[¶7] Burney does not dispute that he failed to timely file the agency record as required by Ind. Code § 4-21.5-5-13. Burney asserts, however, that he tendered the complete agency record to the trial court before the hearing on the motion to dismiss and "no delay in the prosecution of the review was necessary." Appellant's Brief at 11. Noting the general judicial preference for deciding cases on the merits, Burney argues that "the equities of the situation required the trial court .. to consider the then-pending Petition for Judicial Review." Id. at 15.
[¶8] AOPA provides the exclusive means for judicial review of final administrative determinations by DCS. See I.C. §§ 4-21.5-2-6(1); 4-21.5-5-1. Relevant here, I.C. § 4-21.5-5-13 provides:
(a) Within thirty (30) days after the filing of the petition, or within further time allowed by the court or by other law, the petitioner shall transmit to the court the original or a certified copy of the agency record for judicial review of the agency action, ....
(b) An extension of time in which to file the record shall be granted by the court for good cause shown. Inability to obtain the record from the responsible agency within the time permitted by this section is good cause. Failure to file the record within the time permitted by this subsection, including any extension period ordered by the court, is cause for dismissal of the petition for review by the court, on its own motion, or on petition of any party of record to the proceeding.
***(Emphasis added).
The Indiana General Assembly recently passed amendments to this statute that, among other things, shift the responsibility of transmitting the agency record to "the office or ultimate authority" and remove the emphasized language above. Public Law 128-2024 § 13. Nevertheless, the amendments are not effective until July 1, 2024, and will not apply to judicial review proceedings pending before that date.
[¶9] In Ind. Fam. &Soc. Servs. Admin. v. Meyer, 927 N.E.2d 367 (Ind. 2010), the Supreme Court held that a trial court has no discretion to accept a belatedly filed agency record, explaining:
We believe the statute is clear. The statute places on the petitioner the responsibility to file the agency record timely. Although the statute allows a petitioner to seek extensions of time from the trial court, and requires that extensions be granted if the petitioner demonstrates "good cause" for a delay in filing the record, the statute does not excuse untimely filing or allow nunc pro tunc extensions.Id. at 370. Thus, a "trial court has no authority to grant a motion for an extension of time to file the record if the motion is filed after the time for filing the record and any previous extensions have expired." Id. at 372.
[¶10] The Supreme Court reiterated the Meyer holding four years later in Teaching Our Posterity Success, Inc. v. Ind. Dep't of Educ. (TOPS), 20 N.E.3d 149 (Ind. 2014), observing that the Court had unanimously held that "the relevant provisions of AOPA do not permit untimely filing of the agency record or nunc pro tunc extensions of the filing deadline." Id. at 153. The Court then addressed a question left undecided due to an even split among the four voting justices in Meyer: What should happen when a petitioner fails to submit the official agency record timely but the documents filed with the petition for review may be sufficient for adjudication of the claims raised in the petition?
[¶11] Though acknowledging the long-recognized judicial preference for deciding cases on the merits, the Court determined that a trial court lacks the discretion to reach the merits of a petition for judicial review where the agency record has not been filed:
Resolving a long-standing lack of consensus on the subject, today we hold that a petitioner seeking judicial review of an agency action must file with the trial court the agency record as defined by [AOPA]. Failure to do so results in dismissal of the petition.
***
In sum we hold a petitioner for review cannot receive consideration of its petition where the statutorily-defined agency record has not been filed. In our view this bright-line approach best serves the goals of accuracy, efficiency, and judicial economy. Here because TOPS did not file the agency record as anticipated by AOPA, the trial court properly dismissed its petition for judicial review.Id. at 150, 155 (footnote omitted).
[¶12] Burney attempts to distinguish TOPS on the basis that the petitioner in that case never filed the agency record. But this argument ignores the reality that Burney is on equal footing with the petitioner in TOPS because the trial court could not consider the record that Burney belatedly filed. In other words, due to Burney's late filing, the record was never properly before the trial court, and without it, his petition for judicial review could not be considered. See Allen Cnty. Plan Comm'n v. Olde Canal Place Ass'n, 61 N.E.3d 1266, 1270 (Ind.Ct.App. 2016) (holding that trial court's grant of petitioner's Ind. Trial Rule 60(B)(1) motion setting aside the dismissal was "an empty exercise" and an abuse of discretion because petitioner could not establish a meritorious claim where the agency record had been filed eight days late).
[¶13] The trial court had no discretion in this case. Without a timely filed agency record, dismissal was mandatory. Id. at 1270 (citing TOPS, 20 N.E.3d at 155). Accordingly, the trial court did not err by dismissing Burney's petition for judicial review.
[¶14] Judgment affirmed.
Bradford, J. and Felix, J., concur.