992 N.E.2d 687 (Ind. 2013), 37S03-1303-AD-159, In re Adoption of C.B.M.

Docket Nº:37S03-1303-AD-159.
Citation:992 N.E.2d 687
Opinion Judge:RUSH, Justice.
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, South Bend, IN, Attorney for Appellees. Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for the State of Indiana. Barry A. Chambers, Carey Haley Wong, I...
Judge Panel:DICKSON, C.J., and RUCKER, DAVID, and MASSA, JJ., concur.
Case Date:August 16, 2013
Court:Supreme Court of Indiana

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992 N.E.2d 687 (Ind. 2013)

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

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


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

No. 37S03-1303-AD-159.

Supreme Court of Indiana.

August 16, 2013

Page 688

[Copyrighted Material Omitted]

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

Charles P. Rice, South Bend, IN, Attorney for Appellees.

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

Barry A. Chambers, Carey Haley Wong, Indianapolis, IN, Attorneys for Amicus Curiae Child Advocates, Inc.


RUSH, Justice.

The foster parents of C.B.M. and C.R.M. adopted them while their natural mother's termination of parental rights (TPR) appeal was still pending. Our statutes specifically allow those competing processes to overlap. But choosing to do so creates the devastating possibility of jeopardizing a finalized adoption if the underlying TPR judgment is later reversed on appeal.

That is exactly what happened here, and we cannot unscramble that egg. 1 Either the adoptive family prevails in violation of the natural mother's constitutional rights, or the natural mother prevails at the risk of pulling the children away from the only family they know. But the natural mother's rights, both as a parent and as a litigant with an absolute right to an appeal, are constitutionally protected. We cannot cut corners on those rights, despite our concerns for the children's undoubtedly vital interest in a speedy and permanent placement.

We therefore conclude that the trial court should have set aside the adoption,

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because the prior TPR " judgment upon which it is based has been reversed or otherwise vacated" — making the adoption voidable under Indiana Trial Rule 60(B)(7). And since a dilemma like this ill-serves the interests of everyone involved, we also offer guidance for mitigating the harsh result in this case, and in any future cases of this type.

Facts and Procedural History

C.A.B. is the natural mother of fraternal twins C.B.M. and C.R.M. (" Twins" ), born in June 2004. Paternity has never been established, and their father's identity is not known. In January 2006, the Twins were determined to be children in need of services (CHINS) and removed from Natural Mother's home. TPR proceedings began against Natural Mother in July 2007, and TPR was granted in January 2008 over the strong objections of the Twins' guardian ad litem. Natural Mother promptly appealed the TPR judgment.

In early summer 2008, the Twins' foster parents J.D.M. and K.L.M. (" Adoptive Parents" 2 ) petitioned to adopt them. DCS gave its consent to the adoption, which was granted about ten weeks later. None of the parties to the adoption notified Natural Mother of the proceedings, because notice is not required to a parent whose rights have been terminated. Ind.Code § 31-19-2.5-4(4). Nor did Mother make any effort to file a stay of the trial court's TPR judgment; and DCS made no effort to notify the Court of Appeals that the adoption was pending or that it had consented to the adoption. Mother's TPR appeal was still pending at the time the adoption was finalized.

Just two months later, in September 2008, the Court of Appeals reversed the TPR judgment against Natural Mother. The court held that in view of recent positive changes in Natural Mother's life, DCS had failed to carry its burden of establishing by clear and convincing evidence that the conditions leading to the Twins' removal would not be remedied and that continuing the parent-child relationship would threaten the Twins' well-being. Moore v. Jasper Cnty. Dep't of Child Servs., 894 N.E.2d 218, 228-29 (Ind.Ct.App.2008). Based on that decision, Natural Mother petitioned the adoption court in January 2009 to set aside the adoption decree. The Adoptive Parents promptly objected.

Ultimately, Natural Mother's petition to set aside the adoption was not resolved until three years later. In July 2009, she moved for summary judgment, arguing that because she was never notified of the adoption, the adoption decree was void for lack of personal jurisdiction; and that the statutes allowing the adoption to proceed during her TPR appeal unconstitutionally deprived her of Due Process. The trial court heard the motion in August 2010, and denied the motion in December 2011. Its ruling agreed with the Adoptive Parents that Natural Mother's constitutional rights were not violated, and that her remedy was to seek a stay of the TPR judgment pending appeal under Indiana Trial Rule 62, which she did not do. The trial court therefore refused to declare the statutes unconstitutional, denied the petition to set aside the adoption, and denied summary judgment. Natural Mother's motion to correct error was also denied, and she appealed.

The Court of Appeals reversed, though it divided on the reasons for doing so. The majority concluded that even though

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Natural Mother was not entitled by statute to notice of the adoption because her rights had been terminated, DCS nevertheless acted " arbitrarily and capriciously" by failing to provide such notice, and by consenting to the adoption without having done so. In re Adoption of C.B.M. and C.R.M., 979 N.E.2d 174, 185 (Ind.Ct.App.2012). Judge Vaidik separately concurred, believing the issue was better resolved by construing the adoption statutes to require final appellate resolution of TPR cases before dispensing with notice to or consent of the natural parents. Id., 979 N.E.2d at 186. We granted transfer, 984 N.E.2d 221 (Ind.2013) (table), thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

We now reach the same result as the Court of Appeals, but for a different reason— that because the adoption was based on the TPR judgment, Natural Mother became entitled to set aside the adoption under Trial Rule 60(B)(7) when she prevailed in her TPR appeal.

Standard of Review

Relief from judgment under Trial Rule 60 is an equitable remedy within the trial court's discretion. Outback Steakhouse of Fla., Inc. v. Markley, 856 N.E.2d 65, 72 (Ind.2006). Accordingly, we generally review a trial court's Rule 60 ruling only for abuse of discretion. Id. But when " the trial court rules on a paper record without conducting an evidentiary hearing," as happened here, we are " in as good a position as the trial court ... to determine the force and effect of the evidence." GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind.2001) (quoting Farner v. Farner, 480 N.E.2d 251, 257 (Ind.Ct.App.1985)). Under those circumstances, our review is de novo. See id. (applying de novo review to a motion to dismiss, where trial court resolved disputed facts from a paper record). See also Williams v. Tharp, 934 N.E.2d 1203, 1215 (Ind.Ct.App.2010), trans. denied (reviewing de novo denial of relief under T.R. 60(B)(8) when...

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