Adoption of H.S., Matter of, No. 1-1184A296

Docket NºNo. 1-1184A296
Citation483 N.E.2d 777
Case DateOctober 10, 1985
CourtCourt of Appeals of Indiana

Page 777

483 N.E.2d 777
In the Matter of the ADOPTION OF H.S.
Doris SMOCK, Petitioner-Appellant,
v.
Francis and Teresa HOEING, Respondent-Appellees.
No. 1-1184A296.
Court of Appeals of Indiana,
First District.
Oct. 10, 1985.

Page 778

Maureen E. Gaddy, Indianapolis, for petitioner-appellant.

W. Michael Wilke, Wickens, Wickens & Wilke, Greensburg, for respondent-appellees.

NEAL, Judge.

STATEMENT OF THE CASE

Petitioner-appellant, Doris Smock (Doris), appeals the denial of her Emergency Verified Petition to Revoke Consent for Adoption of H.S.

We affirm in part and reverse in part.

STATEMENT OF THE FACTS

Doris, age 49, is the natural blood grandmother of H.S. and had adopted H.S. in 1980. H.S. is the natural blood daughter of Nancy, Doris' daughter. Respondent, Teresa Hoeing, is the blood niece of Doris, and respondent, Francis Hoeing, is Teresa's husband. Throughout the year prior to April 16, 1982, there had been conversations among Doris, her mother Zona Frodge, and Teresa concerning the adoption of H.S. by Teresa and Francis. Doris wanted Teresa to take H.S. on a temporary custody basis, but Teresa, on advice of her attorney, refused. After much soul searching Doris agreed to the adoption, but conceded that it was done after a discussion with her own attorney who advised her not to.

On April 16, 1982, Doris, Teresa and Francis met in the office of Teresa and Francis' attorney. In a recorded interview the attorney candidly explained to Doris all of the ramifications of adoption: that H.S. would forever be the child of Teresa and Francis, that H.S. would no longer belong to Doris, and that Doris would have no rights in the child after adoption. Doris stated her reasons for adoption were that her daughter, Nancy, was threatening to take the child, there was so much turmoil, and Teresa could give H.S. a better home.

Page 779

The attorney also told her there would be no welfare investigation. He read the petition to Doris in its entirety and let her read it.

Thereupon, before a notary public, Doris executed the consent to adoption which was attached to the petition. The petition was then filed in the Decatur Circuit Court on April 19, 1982, and on April 20, 1982, the court entered the decree of adoption. Doris admitted she was then told of the finalization of the adoption.

On December 6, 1983, Doris, by her then trial attorney, William C. Erbecker, filed her Emergency Verified Petition to Revoke Consent for Adoption alleging as grounds therefor: (1) mental strain; (2) duress by her parents and petitioner; (3) fraud and undue influence; (4) consent not obtained under oath and without aid of counsel; (5) lack of intent of adoptive mother (Doris) and absence of natural mother; (6) best interest of the child; and (7) disparity of treatment by Teresa between H.S. and her natural children. The petition was heard on May 30, 1984, and denied on June 15, 1984.

Doris filed her Motion to Correct Errors on June 29, 1984, addressing (1) insufficiency of the evidence, and (2) decision contrary to law; the motion concerned only duress, undue influence, lack of intent, and nonrepresentation of counsel.

On September 5, 1984, more than 60 days after the date of the judgment, Doris, by other counsel, filed her Amended Motion to Correct Errors and Motion to Void Adoption Decree Due to Lack of Jurisdiction alleging for the first time the trial court's lack of subject matter jurisdiction. The specifications of the amended motion included: (a) failure to allege the time the child had been in the home of the adopting parent as required by IND.CODE 31-3-1-2; (b) abuse of discretion by the trial court in not requiring a period of supervision as required by IND.CODE 31-3-1-3; (c) failure to refer petition to the Welfare Department for investigation and report as required by IND.CODE 31-3-1-4; and (d) failure to provide parent a notice of hearing and opportunity to object as required by IND.CODE 31-3-1-6. She also alleged in the amended petition lack of due process in granting the petition within 24 hours, insufficiency of the evidence, and the decision was contrary to law.

On November 5, 1984, the trial court granted the Amended Motion to Correct Errors filed September 5, 1984, for the specification that the petition was not referred to the Welfare Department for investigation or report, and vacated the Decree of Adoption. The trial court reaffirmed the denial of the petition to revoke consent for adoption, ordered the petition referred to the Welfare Department for report, and set the petition for hearing.

ISSUES

Doris raises six issues on appeal, restated by us into three issues as follows:

I. The trial court lacked subject matter jurisdiction to enter the adoption decree because (1) the petition failed to allege the time the child was in the adopting home (IND.CODE 31-3-1-2), and (2) the court failed to refer the petition to the Welfare Department (IND.CODE 31-3-1-4); therefore, the decree of adoption is void.

II. Court violated Doris' due process rights and abused its discretion granted under IND.CODE 31-3-1-3 relative to supervision by granting adoption within 24 hours.

III. The conclusion and judgment of the court is contrary to law in that the acts of respondent were a fraud on the court.

Hoeings raise the cross-error that the court erred in vacating the decree of adoption.

DISCUSSION AND DECISION

Issue I: Subject...

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34 practice notes
  • Harlan Sprague Dawley, Inc. v. Indiana Dept. of State Revenue, No. 49T05-9007-TA-00038
    • United States
    • Indiana Tax Court of Indiana
    • December 6, 1991
    ...2 of the court to hear and determine a general class of cases to which the proceedings belong." In re Adoption of H.S. (1985), Ind.App., 483 N.E.2d 777, 780. Regardless of whether the court is one of limited or general jurisdiction, subject matter jurisdiction is not simply jurisdiction ove......
  • Harp v. Indiana Dept. of Highways, No. 41A04-9012-CV-570
    • United States
    • Indiana Court of Appeals of Indiana
    • January 23, 1992
    ...it belong. State ex rel. Hight v. Marion Superior Court (1989), Ind., 547 N.E.2d 267, 269; Matter of Adoption of H.S. (1985), Ind.App., 483 N.E.2d 777, 780; State ex rel. Young v. Noble Circuit Court (1975), 263 Ind. 353, 356, 332 N.E.2d 99, 101; State ex rel. Indianapolis v. Brennan (1952)......
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • February 8, 1989
    ...judgment and the question of subject matter jurisdiction can be raised at any time. E.g. Matter of Adoption of H.S. (1985), Ind.App., 483 N.E.2d 777, 780, reh. In Adoption of H.S. Judge Neal, speaking for the First District, discussed jurisdiction and the application of state law. He said J......
  • Bielski v. Zorn, No. 49T10-9309-TA-00070
    • United States
    • Indiana Tax Court of Indiana
    • January 20, 1994
    ...Dawley, Inc. v. Indiana Dep't of State Revenue (1991), Ind.Tax, 583 N.E.2d 214, 216 (quoting In Re Adoption of H.S. (1985), Ind.App., 483 N.E.2d 777, 780) (emphasis in original) (footnote omitted). The State Board also asserts the Landowners have failed to state a claim upon which relief ca......
  • Request a trial to view additional results
34 cases
  • Harlan Sprague Dawley, Inc. v. Indiana Dept. of State Revenue, No. 49T05-9007-TA-00038
    • United States
    • Indiana Tax Court of Indiana
    • December 6, 1991
    ...2 of the court to hear and determine a general class of cases to which the proceedings belong." In re Adoption of H.S. (1985), Ind.App., 483 N.E.2d 777, 780. Regardless of whether the court is one of limited or general jurisdiction, subject matter jurisdiction is not simply jurisdiction ove......
  • Harp v. Indiana Dept. of Highways, No. 41A04-9012-CV-570
    • United States
    • Indiana Court of Appeals of Indiana
    • January 23, 1992
    ...it belong. State ex rel. Hight v. Marion Superior Court (1989), Ind., 547 N.E.2d 267, 269; Matter of Adoption of H.S. (1985), Ind.App., 483 N.E.2d 777, 780; State ex rel. Young v. Noble Circuit Court (1975), 263 Ind. 353, 356, 332 N.E.2d 99, 101; State ex rel. Indianapolis v. Brennan (1952)......
  • Associates Inv. Co. v. Claeys, No. 71A04-8804-CV-131
    • United States
    • Indiana Court of Appeals of Indiana
    • February 8, 1989
    ...judgment and the question of subject matter jurisdiction can be raised at any time. E.g. Matter of Adoption of H.S. (1985), Ind.App., 483 N.E.2d 777, 780, reh. In Adoption of H.S. Judge Neal, speaking for the First District, discussed jurisdiction and the application of state law. He said J......
  • Bielski v. Zorn, No. 49T10-9309-TA-00070
    • United States
    • Indiana Tax Court of Indiana
    • January 20, 1994
    ...Dawley, Inc. v. Indiana Dep't of State Revenue (1991), Ind.Tax, 583 N.E.2d 214, 216 (quoting In Re Adoption of H.S. (1985), Ind.App., 483 N.E.2d 777, 780) (emphasis in original) (footnote omitted). The State Board also asserts the Landowners have failed to state a claim upon which relief ca......
  • Request a trial to view additional results

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