OPINION

VAIDIK, Judge.

Case Summary

The Indiana Department of Child Services (DCS) substantiated an abuse allegation against foster parent Jesse Brown. Brown appealed. The administrative law judge (ALJ) held a hearing at which Brown was not allowed to be in the hearing room during the victim's testimony because of distress to the victim. The ALJ then entered findings of fact and conclusions of law that DCS had proved that Brown abused the child. Brown lost his child-care license.

Brown filed a verified petition for judicial review in the trial court, attaching the ALJ's findings and conclusions. DCS then filed a motion to dismiss Brown's petition for judicial review, arguing that Brown failed to file the agency record timely or request an extension of time to file the agency record and therefore the trial court lacked jurisdiction to rule on Brown's petition. The trial court granted the motion to dismiss in part, and the case proceeded to the merits on the remaining claims, including whether Brown's constitutional rights were violated when he was banned from the hearing room during the victim's testimony. The trial court affirmed the ALJ but ordered DCS to reimburse Brown $1200 for the cost of preparing the agency record. Brown appeals, and DCS cross-appeals.

We recognize that there is no consensus on either the Indiana Supreme Court or this Court regarding what should happen when a petitioner fails to submit the agency record timely but the documents filed with the petition for review may be sufficient for the trial court to adjudicate the claims raised in the petition. However, it is clear that if the court needs the agency record to resolve an issue, then the petitioner's failure to file the agency record or request an extension of time to file the record within thirty days after filing the petition for review means that the case must be dismissed. Because Brown's constitutional claim is one that requires the agency record, we reverse the trial court's denial of DCS's motion to dismiss. In addition, because the petitioner bears the burden of filing the agency record timely and the petitioner is entitled to an extension to file the agency record due to the inability to obtain the record from the agency, we conclude that the trial court erred in ordering DCS to reimburse Brown $1200 for the cost of preparing the agency record.

Facts and Procedural History

Brown was a child-care worker/resource parent with DCS and served as a foster parent. Q.F., a ward of DCS born November 2, 1995, was placed with Brown as a pre-adoptive placement in April 2009. In December 2009, a few months before Q.F.'s adoption by Brown was to be finalized, Q.F. told his Family Case Manager (FCM) Jessica Archer that Brown abused him by touching his penis over his shorts on a camping trip to Brown County and then later under his shorts at their Johnson County home. Q.F. was taken to the Child Advocacy Center in Johnson County, where he was interviewed by FCM Wendy Maschino. Q.F. was also interviewed at the Greenwood Police Department.1 Based on the above evidence, FCM Charity Anderson recommended that the abuse allegations against Brown be substantiated.

Because of Brown's status as a child-care worker/resource parent, DCS conducted an agency review of FCM Anderson's recommendation. Brown participated in this review. DCS substantiated the abuse allegation against Brown.

Brown appealed. Hearings were held before ALJ Dawn Wilson on April 22 and June 22, 2010. At the June 22 hearing, Brown appeared in person and by counsel. DCS appeared by FCM Anderson and by counsel. Q.F. was a witness. According to the ALJ's findings, both parties stipulated that Q.F. refused to talk or testify with Brown in the same room. Appellant's App. p. 19 (Finding No. 10). DCS's counsel said, "DCS would ask that it only be counsel and Judge in the room during [Q.F.'s] testimony." Appellee's App. p. 57. Over Brown's objection, Brown was not in the hearing room during Q.F.'s testimony. Appellant's App. p. 22 (Finding No. 16). Also according to the ALJ's findings, Brown appeared and participated through his counsel, who cross-examined Q.F., and Brown's counsel was given the opportunity to leave the room to communicate with Brown on multiple occasions. Id. Brown testified and denied the allegations.

On July 14, 2010, the ALJ issued a Notice of Hearing Decision which concluded that DCS had proved, by a preponderance of the evidence, that Brown abused Q.F. when he was under the age of fourteen. In the order, the ALJ provided that she "reviewed the testimony and all evidence presented at the hearing[] regarding this matter." Id. at 17. As for Q.F.'s testimony, the ALJ found:

Id. at 21-22. As a result of the ALJ's decision, Brown's child-care license was revoked.

On August 10, 2010, Brown filed a verified petition for judicial review of DCS's final order in Johnson Superior Court. Appellee's App. p. 1. He attached the ALJ's Notice of Hearing Decision to his petition and challenged DCS's actions as "invalid" for numerous reasons. See id. at 2-3. On October 4, 2010, DCS filed a motion to dismiss Brown's petition for judicial review, arguing that Brown had failed to file the agency record timely or request an extension of time to file the agency record and therefore the trial court lacked jurisdiction to rule on Brown's petition. Id. at 15, 19. Brown filed a response in which he explained that he had submitted a written request to DCS for it to "prepare and certify a true, accurate and complete copy of the entire Agency Record" on August 10, 2010, which was the same day that he filed his petition for judicial review. Id. at 35. DCS had then replied by letter dated August 24, 2010, that Circle City Reporting was DCS's vendor and to "allow at least ninety (90) days for the completion of the requested transcript and related documents." Id. at 36.

According to the Indiana Administrative Orders and Procedures Act (AOPA), the agency record, or a motion for extension of time to file the record, would have been due no later than September 9, 2010. See Ind. Code § 4-21.5-5-13(a) (requiring agency record to be filed within thirty days after the filing of the petition for judicial review). But Brown never filed a motion for extension of time to file the agency record. Instead, Brown filed the agency record on November 8, 2010. Appellant's App. p. 3(CCS); Appellee's App. p. 40 (Notice of Filing Agency Record). Brown paid Circle City Reporting $1200 for the cost of preparing the transcript. Appellee's App. p. 37.

The trial court entered an order that granted in part and denied in part DCS's motion to dismiss Brown's petition for judicial review in January 2011. The court concluded as follows:

Id. at 44-45. The court's order ended with the following statement and sanctions against DCS:

Id. at 45.

DCS filed a motion to reconsider portions of the trial court's motion-to-dismiss order. Brown filed an objection to DCS's motion to consider and his own motion to reconsider. The trial court denied both motions to reconsider.

The case then proceeded to the merits. Based on the trial court's motion-to-dismiss order that significantly narrowed the issues in the case, Brown argued that his constitutional rights were violated when he was barred from the hearing room during Q.F.'s testimony and that the ALJ's decision was untimely. In March 2012, the trial court issued its Order on Petition for Judicial Review affirming the decision of the ALJ. The order provides, in relevant part:

Appellant's App. p. 10-11.

Brown filed a motion to correct errors arguing that Indiana Code section 4-21.5-3-27(g) did not apply to DCS and urged the trial court to refer to DCS's Child Welfare Manual, which provides that an ALJ decision must be issued within fifteen days after a hearing concerning a child-care worker. The State opposed Brown's motion to correct errors. A hearing on Brown's motion to correct errors was held. Brown then filed post-hearing legal authority asking the trial court to take judicial notice of DCS's manual. Id. at 27-28.

The trial court granted Brown's motion to correct errors with regard to the inapplicability of Indiana Code section 4-21.5-3-27(g). But as for the appropriate time frame, the trial court found that DCS's manual did not have the force and effect of law and that "a time period for ruling by the Administrative Law Judge is not set out by statute or by administrative rule." Id. at 16. The trial court therefore affirmed the ALJ's decision. Id.

Brown appeals, and DCS cross-appeals.

Discussion and Decision

Brown contends that the trial court erred by finding that his constitutional rights were not violated when he was barred from the hearing room during Q.F.'s testimony.2 DCS counters that the trial court erred by denying its motion to dismiss this claim based on Brown's failure to file the agency record timely or to file a motion for extension of time to file the agency record. DCS also argues that the trial court improperly ordered it to reimburse Brown $1200 for the cost of preparing the agency record.

Judicial review of administrative decisions is governed by AOPA. Ind. Code § 4-21.5-2-0.1. The standard of appellate review for motions to dismiss depends on whether the trial court resolved disputed facts, and if so, whether there was an evidentiary hearing. Wayne Cnty. Prop. Tax Assessment Bd. of Appeals v. United Ancient Order of Druids-Grove No. 29, 847 N.E.2d 924, 926 (Ind.2006). Where, as here, the trial court ruled on a paper record, we review the motion to dismiss de novo.3 Id.

I. What is the Consequence of Brown's Failure to File the Agency Record Timely?

The issue here centers on Brown's failure to, within thirty days of filing his petition for review, either file the agency record or a motion for extension of time to file the record. AOPA requires that "[w]ithin 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...." I.C. § 4-21.5-5-13(a).4 This statute places on the petitioner the responsibility to file the agency record timely. Ind. Family & Soc. Servs. Admin. v. Meyer, 927 N.E.2d 367, 370 (Ind.2010). A petitioner can request an extension of time to file the agency record, but that request must be made within the initial thirty-day window; nunc pro tunc extensions are not allowed. Id. at 370-71. AOPA further provides that extensions of time shall be granted where good cause is shown, and an "[i]nability to obtain the record from the responsible agency within the time permitted by this section is good cause." I.C. § 4-21.5-5-13(b). "Upon written request by the petitioner, the agency taking the action being reviewed shall prepare the agency record for the petitioner." I.C. § 4-21.5-5-13(c). "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 the petition of any party of record to the proceeding." I.C. § 4-21.5-5-13(b) (emphasis added).

It is undisputed that Brown neither filed the agency record within thirty days nor requested an extension of time within that time period. Failure to do so was "cause for dismissal" pursuant to Section 4-21.5-5-13(b). Brown argues that despite his failures, the document he attached to his petition for review — the Notice of Hearing Decision which contains the ALJ's findings of fact and conclusions of law — contains sufficient information to enable judicial review; therefore, the trial court properly denied DCS's motion to dismiss the claim that his constitutional rights were violated when he was excluded from the hearing room during Q.F.'s testimony. DCS, however, argues that the trial court should have dismissed the remaining claim because it needed the agency record to review it.

There is a division in both the Indiana Supreme Court and this Court as to what should happen when a petitioner fails to submit the agency record timely, but the documents filed with the petition for review may be sufficient for the trial court to adjudicate the claims raised in the petition for review.

Our Supreme Court was recently equally divided in Meyer on this very issue.5 In Meyer, the appealed issue was a question of fact revolving around the valuation of a farm as it related to Alice Meyer's application for Medicaid. FSSA admitted to error in its answer. Two of the participating justices determined that, in light of the agency's admission, the submitted documents were sufficient for review even without the full agency record. Meyer, 927 N.E.2d at 372. The other two participating justices disagreed, arguing that an agency record is required for judicial review and holding otherwise would lead to a "slippery slope, setting in motion regular satellite litigation ... in which private citizens and the taxpayers will spend time and money contesting whether a record is `complete enough.'" Id. at 374 (Shepard, C.J., concurring and dissenting).

Because the Court was "equally divided as to whether a case may go forward where a full record of proceedings has not been filed[,] [t]he result in the Court of Appeals therefore remain[ed] in place and the trial court's order remanding th[e] case to FSSA [wa]s affirmed." Id. at 372.

More recently, this Court, in a 2-1 opinion, encountered this issue in Lebamoff Enterprises, Inc. v. Indiana Alcohol & Tobacco Commission, 987 N.E.2d 525 (Ind.Ct.App.2013). Lebamoff Enterprises operates liquor stores in northern Indiana and holds a liquor-dealer permit. The Indiana Alcohol and Tobacco Commission (ATC) issued citations to Lebamoff stemming from Lebamoff's use of common carriers to transport product to customers, and Lebamoff appealed. The ALJ issued findings of fact and conclusions of law that Lebamoff had violated the governing statute by using common carriers. The ALJ recommended a fine of $1000 per violation and that Lebamoff's permit be suspended for sixty days, with the suspension deferred on the condition that all fines were paid and no further violations were accrued. The ATC approved the ALJ's recommendations.

Lebamoff filed a petition for judicial review, but it did not file the agency record timely. ATC filed a motion to dismiss for failure to file the agency record. Following a hearing, the trial court granted the ATC's motion to dismiss. Lebamoff appealed.

On appeal, the majority6 acknowledged that dismissal was "possible" due to Lebamoff's failure to file the agency record timely or request an extension of time; however, the majority cautioned that "dismissal was not mandatory." Id. at 529. The majority pointed to the split court in Meyer "on the issue of whether a trial court may proceed with a case where the agency record was not timely filed, but the submitted materials contained sufficient facts on which a determination could be made." Id. at 529. The majority distinguished this case from Meyer, finding that the issue in this case — whether Lebamoff's use of common carriers complied with the governing statute — was a pure question of law. Id. And to the extent that any facts were necessary, "they were included in the sparse findings of fact and conclusions of law written by the ALJ, which were submitted by Lebamoff with its petition; for example, the findings of fact noted that Lebamoff held a liquor permit, and the statutory section under which that permit was held." Id. Because the question in Lebamoff presented a question of law and there were no disputed facts, the majority found that "the limited findings of the ALJ were sufficient to allow judicial review of the issue, even in the absence of the agency record." Id. The majority concluded:

Id.

Judge Kirsch dissented. He argued:

Id. at 531 (Kirsch, J., dissenting).

Although there is no consensus on either appellate court right now, one thing is certain: if the court needs the agency record to resolve an issue, then the petitioner's failure to file the agency record or request an extension of time to file the record within thirty days after filing the petition for review means that the case must be dismissed. The question in this case becomes: was the agency record needed to review Brown's claim that his constitutional rights were violated when he was not allowed in the hearing room during Q.F.'s testimony? Brown says no; DCS says yes. We agree with DCS.

Our Supreme Court addressed a party's right to be present during the liability and damage phase of trial under Article 1, Section 20 of the Indiana Constitution in Jordan v. Deery, 778 N.E.2d 1264 (Ind. 2002), reh'g denied. The Court concluded that because the right to be present in the courtroom during both the liability and damage phases of trial is so basic and fundamental, a party cannot be excluded "absent waiver or extreme circumstances." Id. at 1272.

Here, the ALJ found extraordinary circumstances as follows:

Appellant's App. p. 21-22 (Finding No. 16).

Although the trial court found that the record was not available from which to assess the ALJ's findings, the court determined:

Id. at 11. Without the agency record, there can be no judicial review of whether extraordinary circumstances existed that justified Brown's exclusion from the hearing room during Q.F.'s testimony. This is especially so since the ALJ indicated in her order that she relied on the testimony and all evidence presented at the hearing to reach her decision. In contrast to Lebamoff, which involved a pure question of law and no disputed facts, a determination of extraordinary circumstances is extremely fact sensitive. Despite the divide on the appellate courts, we do not need to decide whether failing to submit the agency record timely should result in dismissal of a case because here the record was needed. Because the agency record is needed to review this issue and Brown failed to file the agency record or request an extension of time to file the record within thirty days after filing the petition for review, we conclude that the trial court erred in denying DCS's motion to dismiss the remaining claim. Accordingly, the trial court lacked jurisdiction. See Wrogeman v. Roob, 877 N.E.2d 219, 222 (Ind.Ct.App.2007), trans. denied; Ind. State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 813 N.E.2d 330, 333 (Ind.Ct.App.2004) ("It is well-established that the time provisions of I[ndiana] C[ode section] 4-21.5-5-13 are ... a condition precedent to a court acquiring to consider a petition for judicial review." (quotation omitted)).

II. Should DCS Reimburse Brown for the Cost of the Agency Record?

DCS contends that the trial court erred in ordering it to reimburse Brown $1200 for the cost of preparing the agency record. In its order granting in part and denying in part DCS's motion to dismiss Brown's petition for judicial review, the trial court ordered as follows:

Appellee's App. p. 45. Earlier in the same order, the trial court stated that "[t]here is a manifest injustice in placing in [the] hands of an adverse party the responsibility for time preparation of a record of the proceedings with the possibility of dismissal in favor of the adverse party if not time prepared." Id. at 43.

We agree with DCS that the trial court erred in ordering it to reimburse Brown $1200 for the cost of preparing the transcript. This is because the legislature contemplated the possibility that an agency might not be able to prepare a record in time for filing within thirty days after the filing of a petition for judicial review. Accordingly, the legislature allowed petitioners to request an extension of time to file the record, which shall be granted where good cause is shown. Notably, the inability to obtain the record from the agency within the thirty days is good cause. I.C. § 4-21.5-5-13(b).

Here, the record shows that after Brown requested the agency record, DCS immediately informed him that it needed ninety days to compile it. Brown did not seek an extension. The burden is on the petitioner — Brown — to file the agency record timely or to file an extension within that time period. Meyer, 927 N.E.2d at 370; Lebamoff, 987 N.E.2d at 527-28. There is no evidence that DCS was being "intentionally slow" or "uncooperative" in producing the record in hopes of securing a dismissal.7 See Mosco v. Ind. Dep't of Child Servs., 916 N.E.2d 731, 735 (Ind.Ct. App.2009), reh'g denied, trans. denied. Moreover, AOPA provides that "the agency shall charge the petitioner with the reasonable cost of preparing any necessary copies and transcripts for transmittal to the court...." I.C. § 4-21.5-5-13(d).

Despite complaints about the statutory setup of having the agency prepare the record when the petition for review can be dismissed for failing to file the record timely, the legislature has provided a simple solution that allows petitioners to seek an extension to file the agency record, which "shall be granted" if based on the inability to obtain the record from the agency. We therefore reverse paragraph 11 of the trial court's January 2011 Order on Defendant's Motion to Dismiss that directed DCS to reimburse Brown $1200 for the cost of preparing the agency record.

Reversed.

KIRSCH, J., and PYLE, J., concur.