J.F. v. L.K. and G.K.

FILED Nov 26 2019, 8:33 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew R. Strzynski Nathan A. Leach Indianapolis, Indiana Herrin & Leach, LLC Indianapolis, Indiana Sean Devenney Drewry Simmons Vornehm, LLP Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA

J.F., November 26, 2019 Appellant, Court of Appeals Case No. 19A-AD-1373 v. Appeal from the Marion Superior Court L.K. and G.K., The Honorable Steven R. Appellees. Eichholtz, Judge The Honorable Kelly M. Scanlan, Pro Tempore Trial Court Cause No. 49D08-1405-AD-17504

Brown, Judge. Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019 Page 1 of 10 [1] J.F. appeals the dismissal of his motion for relief from judgment with respect to

a decree of adoption entered in August 2015. We affirm.

Facts and Procedural History [2] J.F. and E.F. were married in December 2009, and A. (“Child”) was born in

November 2010. On July 30, 2012, an order was entered under cause number

41D01-1206-GU-82 1 (“Cause No. 82”) appointing L.K. and G.K. (“Adoptive

Parents”), Child’s maternal grandparents, as Child’s guardians. [3] On May 28, 2014, Adoptive Parents filed a petition for adoption under cause

number 49D08-14005-AD-17504 (“Cause No. 17504”), the cause from which

this appeal arises, stating that J.F. and E.F. had been separated since Child’s

birth, E.F. and Child had resided at Adoptive Parents’ home since J.F. and E.F.

separated, and Child had been under Adoptive Parents’ care and custody all of

her life. Adoptive Parents alleged that E.F. consented to their adoption of

Child and that J.F.’s consent was not required because, for a period of at least

one year, he knowingly failed to provide for the care and support of Child when

able to do so and had made only token efforts to support or communicate with

Child. J.F. was served with a summons on June 3, 2014, and filed an objection

to contest the adoption on June 18, 2014, and Attorney David Page filed an

appearance for J.F. on July 2, 2014.

1 The case was later transferred from 41D01-1206-GU-82 to 41C01-1206-GU-82.

Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019 Page 2 of 10 [4] On July 28, 2014, E.F. filed a petition for dissolution of marriage under cause

number 41C01-1407-DR-465 (“Cause No. 465”). On March 5, 2015, an

Agreed Entry signed by J.F., E.F., and Adoptive Parents was entered in Cause

Nos. 82 and 465 which provided J.F. with supervised parenting time every

other weekend for four months, continued visits for two months if no concerns

were raised, and upon successful completion of the six-month period,

unsupervised visits every other weekend, and it provided J.F. had accumulated

an arrearage of $22,919. An April 8, 2015 entry in the chronological case

summary (“CCS”) in Cause No. 465 indicates a protective order was issued

pursuant to the Agreed Entry. [5] On April 29, 2015, under Cause No. 17504, Adoptive Parents filed a motion for

a contested hearing. On May 11, 2015, the court issued an order to appear

setting a hearing for 1:30 p.m. on July 20, 2015, and stating pending matters

may be determined in the absence of a party. On May 22, 2015, Attorney Page

filed a motion to withdraw appearance to which he attached a letter to J.F.

dated May 12, 2015, informing him of the date, time, and location of the July

20, 2015 hearing, and the court granted the motion to withdraw appearance.

J.F. did not appear for the July 20, 2015 hearing. On August 10, 2015, the

court entered a decree of adoption. The decree stated that J.F. had been duly

notified of the date, time, and location of the July 20, 2015 hearing but failed to

appear and that the court delayed the start of the hearing for nearly forty

minutes to permit him to appear. The court found that J.F.’s consent to the

adoption was not necessary, Child had been in Adoptive Parents’ care since

Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019 Page 3 of 10

birth, and Child’s welfare and best interests were protected and promoted by the

grant of the adoption. [6] An entry dated June 7, 2016, in the CCS in Cause No. 465 states: “[E.F.]

appears in person, pro se. [J.F.] appears in person, pro se. Parties notify the

Court the minor child of the parties has been adopted.” A June 7, 2016 CCS

entry in Cause No. 82 states: “Parties provide notification that the minor child

has been adopted.” [7] On June 21, 2017, under Cause No. 17504, J.F. filed a motion for relief from

judgment in which he argued that the adoption decree was entered five months

after the Agreed Entry in Cause Nos. 465 and 82, that he did not reside at the

address to which Attorney Page sent his May 2015 letter, that he “did not have

notice or knowledge of the adoption or any hearing thereon,” and that the

decree was void. Appellant’s Appendix Volume II at 49. On December 20,

2018, Adoptive Parents filed a motion to dismiss J.F.’s motion for relief from

judgment citing Ind. Code §§ 31-19-14-2 and -4. On January 31, 2019, the court

held a hearing. [8] On March 5, 2019, the court entered an order dismissing J.F.’s motion for relief

from judgment and providing:

[J.F.’s] Motion for Relief was filed on June 21, 2017, almost two (2) years after the August 10, 2015 adoption decree. Because the time for challenging the adoption decree as set forth in Indiana Code § 31-19-14-2 had expired when [J.F.] filed his Motion for Relief, [he] is precluded from challenging the adoption decree pursuant to Indiana Code § 31-19-4-4.

Id. at 10. J.F. filed a motion to correct error, which the court denied.

Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019 Page 4 of 10

Discussion [9] J.F. claims the trial court erred in dismissing his motion for relief from

judgment. He acknowledges that he did not meet the strict deadline imposed

by Ind. Code §§ 31-19-14-2 and -4, but argues the statutes are not an absolute

bar. He argues that “without notice to [him], the trial court approved the

adoption,” that “[d]espite [his] verification that he had no notice of the final

hearing, the trial court construed the Indiana statutes in a manner that

effectively guarantees that [he] may never see his Child again,” and that “[t]his

interpretation of the Indiana statutes is contrary to [his] constitutionally

protected interests of caring for and raising his Child.” Appellant’s Brief at 10.

He argues this is not a case where he is trying to set aside a default judgment on

credit card debt and he is seeking reversal so that he may exercise the custodial

rights to which Adoptive Parents agreed. Adoptive Parents maintain that J.F.’s

motion was untimely under Ind. Code §§ 31-19-4-2 and -4. [10] We generally review trial court rulings on motions to dismiss, for relief from

judgment, and to correct error for an abuse of discretion, and we review a

matter of statutory interpretation de novo. See Study v. State, 24 N.E.3d 947,

950 (Ind. 2015), cert. denied, 136 S. Ct. 412 (2015); Speedway SuperAmerica, LLC

v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied. Relief from

judgment under Ind. Trial Rule 60 is an equitable remedy within the trial

court’s discretion. In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013).

Ind. Trial Rule 60(B) provides in part:

Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019 Page 5 of 10

On motion and upon such terms as are just the court may relieve a party or his legal representative from a judgment, including a judgment by default, for the following reasons:

(1) mistake, surprise, or excusable neglect; ***** (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ***** (6) the judgment is void; *****

(8) any reason justifying relief from the operation of the judgment, other than those reasons set forth in subparagraphs (1), (2), (3), and (4).

The motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more than one year after the judgment, order or proceeding was entered or taken for reasons (1), (2), (3), and (4). A movant filing a motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim or defense. . . .

The burden is on the movant to demonstrate that relief is both necessary and

just. Wagler v. W. Boggs Sewer Dist., Inc., 980 N.E.2d 363, 372 (Ind. Ct. App.

2012), trans. denied, cert. denied, 574 U.S. 1131 (2014). [11] Ind. Code §§ 31-19-14 govern limitations on direct or collateral attacks of

adoption decrees. Ind. Code § 31-19-14-2 provides:

Except as provided in section 3 of this chapter, if a person whose parental rights are terminated by the entry of an adoption decree challenges the adoption decree not more than the later of: (1) six (6) months after the entry of an adoption decree; or (2) one (1) year after the adoptive parents obtain custody of the child;

Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019 Page 6 of 10

the court shall sustain the adoption decree unless the person challenging the adoption decree establishes, by clear and convincing evidence, that modifying or setting aside the adoption decree is in the child’s best interests.

[12] Ind. Code § 31-19-14-3 provides:

(a) A person who consents to an adoption may not withdraw the consent to adoption after the entry of the adoption decree under IC 31-19-10-4. (b) A person who is served with notice of an adoption under IC 31-19-4 may not: (1) contest the adoption; or (2) establish paternity; more than thirty (30) days after the date of service of notice of the adoption. (c) A person who receives actual notice of an adoption under IC 31-19-3 may not: (1) contest the adoption; or (2) establish paternity; more than thirty (30) days after the date of receiving actual notice of the adoption. (d) A person who is prohibited from taking action by subsection (a), (b), or (c) may not challenge an adoption decree.

[13] Ind. Code § 31-19-14-4 provides:

After the expiration of the period described in section 2 of this chapter, neither a person whose parental rights are terminated by the entry of an adoption decree nor any other person may challenge the adoption decree even if:

(1) notice of the adoption was not given; or (2) the adoption proceedings were in any other manner defective.[2]

2 Prior to July 1, 2017, Ind. Code § 31-19-14-4 provided: After the expiration of the period described in section 2 of this chapter, a person whose parental rights are terminated by the entry of an adoption decree may not challenge the adoption decree even if:

Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019 Page 7 of 10 [14] Inasmuch as the above operate as statutes of limitation, they are favored

because they provide security against stale claims and promote the welfare and

peace of society. Mathews v. Hansen, 797 N.E.2d 1168, 1171 (Ind. Ct. App.

2003), trans. denied. When the undisputed facts establish that a claim is filed

after the running of the applicable statute of limitations, the court must enter

judgment accordingly. Id. Further, if the applicable statute of limitations has

run, dismissal is appropriate. Id. [15] In this case, the trial court entered the decree of adoption on August 10, 2015.

The court found that Child was born in November 2010 and had been in

Adoptive Parents’ care since birth. J.F. filed his motion for relief from

judgment on June 21, 2017, which was well after the deadlines set forth in Ind.

Code § 31-19-14-2. Further, to the extent J.F. asserts that he did not have

notice of the adoption, we note that he was served with a summons and filed an

objection to the adoption in June 2014, that Attorney Page filed an appearance

for J.F. in July 2014 and notified the court in May 2015 that he had informed

J.F. of the July 20, 2015 hearing, that the June 7, 2016 CCS entry in Cause No.

465 indicates that J.F. appeared in person and the parties notified the court of

the Child’s adoption, and that J.F. did not file his motion for relief from

judgment until over a year later on June 21, 2017. We also observe that Ind.

(1) notice of the adoption was not given to the child’s putative father; or (2) the adoption proceedings were in any other manner defective. (Subsequently amended by Pub. L. No. 113-2017 (eff Jul. 1, 2017)).

Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019 Page 8 of 10

Code § 31-19-14-4 specifically precludes J.F. from contesting the adoption

decree even if notice of the adoption was not given. In light of the time periods

set forth in the relevant statutes and Trial Rule 60(B) and J.F.’s knowledge of

the adoption, we find that his motion for relief from judgment was not timely

filed. We find no abuse of discretion. See Mathews, 797 N.E.2d at 1173

(holding that Mathews did not comply with the deadlines in Ind. Code §§ 31-

19-14-2 and -4 and thus was precluded from challenging the adoption decree

and observing that, while he argued that he was not properly provided with

notice of the intent to adopt, Ind. Code § 31-19-14-4 “specifically preclude[d]

[him] from contesting the adoption decree, even if notice of the adoption had

not been given,” “[p]ut another way, it is apparent that our legislature

intentionally promulgated that an adoption decree could not be attacked on the

basis of lack of notice after the time limitations have expired,” and “[t]o hold

otherwise and permit Mathews to vacate the adoption decree in these

circumstances would contravene the intended purpose and specific language of

the applicable statute of limitations”). 3 [16] For the foregoing reasons, we affirm the trial court. [17] Affirmed.

3 J.F. cites In re Adoption of D.C., where we held that the trial court did not have personal jurisdiction over the respondent due to ineffective service of process and reversed on that basis. 887 N.E.2d 950, 957 (Ind. Ct. App. 2008). J.F. does not dispute that he was served with a summons and filed an objection contesting the adoption in June 2014 and does not show the trial court lacked personal jurisdiction over him.

Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019 Page 9 of 10 Altice, J., and Tavitas, J., concur. Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019 Page 10 of 10