979 N.E.2d 174 (Ind.App. 2012), 37A03-1204-AD-149, In re Adoption of C.B.M.

Docket Nº:37A03-1204-AD-149.
Citation:979 N.E.2d 174
Opinion Judge:BAILEY, Judge.
Party Name:In re the Matter of the ADOPTION OF Minor Children: C.B.M. and C.R.M. v. J.D.M. and K.L.M., Appellees-Adoptive Parents. C.A.B., Appellant-Natural Mother,
Attorney:Mark L. Callaway, Rensselaer, IN, Attorney for Appellant. Charles P. Rice, Boveri Murphy Rice, LLP, South Bend, IN, Attorney for Appellees J.D.M. and K.L.M. Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for the State of Indiana.
Judge Panel:BAKER, J., concurs. VAIDIK, J., concurs in result with separate opinion. VAIDIK, Judge, concurring in result.
Case Date:November 30, 2012
Court:Court of Appeals of Indiana
 
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979 N.E.2d 174 (Ind.App. 2012)

In re the Matter of the ADOPTION OF Minor Children: C.B.M. and C.R.M.

C.A.B., Appellant-Natural Mother,

v.

J.D.M. and K.L.M., Appellees-Adoptive Parents.

No. 37A03-1204-AD-149.

Court of Appeals of Indiana.

November 30, 2012

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Mark L. Callaway, Rensselaer, IN, Attorney for Appellant.

Charles P. Rice, Boveri Murphy Rice, LLP, South Bend, IN, Attorney for Appellees J.D.M. and K.L.M.

Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for the State of Indiana.

OPINION

BAILEY, Judge.

Case Summary

C.A.B.'s (" Birth Mother" ) parental rights as to C.B.M. and C.R.M. (" the Children" ) were terminated by the Jasper Circuit Court (" termination court" ). During the pendency of Birth Mother's appeal of the termination order, J.D.M. and K.L.M. (" Adoptive Parents" ) sought to adopt the Children. The Jasper County Department of Child Services (" DCS" ) consented to Adoptive Parents' request, even though Birth Mother's appeal remained pending. The Jasper Superior Court (" adoption court" ) granted the adoption petition, also while Birth Mother's appeal remained pending.

This Court reversed the termination order, after which Birth Mother sought to set aside the adoption decree. In the course of these proceedings, Birth Mother raised issues concerning the constitutionality of Indiana's adoption statutes, and thus the Office of the Attorney General (" the State" ) entered an appearance and provided briefing in the matter. The adoption court ultimately denied Birth Mother's petition to set aside the adoption decree, and she now appeals that decision.

We reverse and remand for further proceedings.1

Issues

Birth Mother raises several issues for our review, but we find one issue dispositive: whether DCS's decision to consent to the Children's adoption without notice to

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Birth Mother during the pendency of her appeal of the termination order was arbitrary and capricious, and thereby deprived Birth Mother of her due process rights under the Indiana and United States Constitutions.

Facts and Procedural History

On January 28, 2008, the termination court ordered Birth Mother's parental rights to Children terminated. Birth Mother appealed the termination order. On September 29, 2008, in a published opinion, this Court reversed the termination order and held that there was insufficient evidence that termination of Birth Mother's parental rights was in Children's best interests. See Moore v. Jasper Cnty. Dep't of Child Servs., 894 N.E.2d 218 (Ind.Ct.App.2008).

On May 12, 2008, during the pendency of Birth Mother's appeal of the termination order, Adoptive Parents filed their Petition to Adopt the Children. The adoption court granted the petition on July 31, 2008-also during the pendency of Birth Mother's appeal of the termination order.

On January 15, 2009, also in the adoption court, Birth Mother filed her Verified Petition to Set Aside Judgment of Adoption, which alleged that the termination order was void because of this Court's decision of September 29, 2008, and this in turn rendered the adoption decree void. On February 11, 2009, Adoptive Parents filed their Memorandum opposing Birth Mother's Verified Petition.

On July 29, 2009, Birth Mother moved for summary judgment and entry of a declaratory judgment, raising for the first time her Due Process Clause-based challenge to the adoption statutory scheme.

On April 13, 2010, in an apparent effort to comply with Indiana's Uniform Declaratory Judgment Act, Birth Mother provided written notice of her motion for summary judgment to the Office of the Indiana Attorney General.2 On May 26, 2010, Birth Mother moved for entry of a default judgment against the State as to the constitutionality of the adoption statutes as applied in her case. On June 7, 2010, the State filed its response to Birth Mother's motion for default judgment, arguing that entry of judgment would be erroneous because the State had not been designated as a party to the action nor had yet decided whether to exercise its statutory right to be heard in the case.

On August 31, 2010, Birth Mother, Adoptive Parents, and the State appeared for a hearing on Birth Mother's motion for summary judgment. After this, numerous supplemental materials were submitted concerning Birth Mother's claims, including the State's memorandum concerning the constitutional claims, filed November 9, 2010, and Birth Mother's responsive memorandum, filed January 4, 2011.

On December 27, 2011, the adoption court denied Birth Mother's motion for summary judgment and her petition to set aside the adoption. In the order, the adoption court concluded that Birth Mother failed to properly preserve her rights to challenge the adoption when she did not seek a stay of the termination order. The adoption court did not address Birth Mother's constitutional claims.

On January 26, 2012, Birth Mother filed her motion to correct error. The State filed its response to the motion on February 28, 2012. On March 2, 2012, the adoption court denied the motion to correct error.

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This appeal followed.3

Discussion and Decision

Standard of Review

Birth Mother's challenge to the adoption comes as a motion for relief from judgment under Trial Rule 60(B), which we ordinarily review for an abuse of discretion. Rice v. Comm'r, Ind. Dep't of Envtl. Mgmt, 782 N.E.2d 1000, 1003 (Ind.Ct.App.2003). The parties agree on the facts of the case, and dispute only questions of law related to the constitutionality and interpretation of certain statutory provisions. In such cases, we review the trial court's decision de novo. Goodson v. Carlson, 888 N.E.2d 217, 220 (Ind.Ct.App.2008) (reviewing de novo questions of due process and personal jurisdiction). We therefore review Mother's appeal de novo.

Whether Birth Mother's Challenge to the Adoption is precluded under Trial Rule 60(B)

Birth Mother contends that the adoption decree was void because this Court reversed the termination order, and thus the adoption court lacked authority to grant the adoption. Adoptive Parents argue that because the termination order was merely voidable, the adoption decree itself was not void and thus Birth Mother's challenge to the adoption decree was not timely.

Trial Rule 60(B)(6), provides that " [o]n motion and upon such terms as are just the court may relieve a party ... from a judgment, including a judgment by default, for the following reasons: ... the judgment is void." Judgments are void ab initio " where the trial court lacks authority to act." Kitchen v. Kitchen, 953 N.E.2d 646, 651 (Ind.Ct.App.2011) (citing Beanblossom v. State, 637 N.E.2d 1345, 1349 (Ind.Ct.App.1994)). Where personal jurisdiction was lacking— that is, where imposition of judgment amounted to a violation of due process— our Supreme Court has held that " a judgment that is void for lack of personal jurisdiction may be collaterally attacked at any time and that the ‘ reasonable time’ limitation under Rule 60(B)(6) means no time limit." Stidham, 698 N.E.2d at 1156.

Whether a judgment is void or voidable is " no mere semantic quibble." Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind.1998). Where a judgment is void it is " ‘ from its inception ... a complete nullity and without legal effect.’ " Id. (quoting 46 Am.Jur.2d Judgments § 31 (1994)). " By contrast, a voidable judgment ‘ is not a nullity, and is capable of confirmation or ratification. Until superseded, reversed, or vacated it is binding, enforceable, and has all the ordinary attributes and consequences of a valid judgment.’ " Id. (quoting 46 Am.Jur.2d Judgments § 30 (1994)). Based upon this distinction, our Supreme Court concluded that where a trial court lacked personal jurisdiction over an essential party to an action, the trial court's judgment was void ab initio and subject to collateral attack. Id. at 1156.

It is clear that the termination order was merely voidable, as this Court did not declare the order void, but instead reversed the order for insufficient evidence. It was thus capable of being corrected and was not void. See id. at 1154. We therefore conclude that the reversed termination order does not itself render

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the adoption decree void. Yet because we reach a conclusion today that the adoption decree is void on different grounds, we now turn to the merits of Birth Mother's appeal.

Construction of the Adoption and Termination Statutes

Birth Mother contends that the statutory scheme, which permits the adoption of children whose parents' appeal of a court-ordered termination of parental rights as to those children remains pending, is unconstitutional as applied in her case. Where a party challenges the constitutionality of a statute, we review the trial court's decision de...

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