In Re Adoption Of L.D.A.B.

• Decision Date: 25 February 2010
• Docket Number: No. 49A02-0907-CV-671.,49A02-0907-CV-671.
• Citation: 925 N.E.2d 734
• Parties: In re ADOPTION OF L.D.A.B. and N.E., Appellants,v.Jo.D. and Ja.D., Appellees.
• Court: Indiana Appellate Court

925 N.E.2d 734

In re ADOPTION OF L.D.A.B. and N.E., Appellants,v.Jo.D. and Ja.D., Appellees.

No. 49A02-0907-CV-671.

Court of Appeals of Indiana.

Feb. 25, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kelly R. Eskew, Cantrell Strenski & Mehringer LLP, Susan Boatright, Indianapolis, IN, Attorneys for Appellants.

Mary Jane Norman, Margaret Lois Jansen, Indianapolis, IN, Attorneys for Appellees.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

A.B. (“Mother”) ¹ and N.E.² separately appeal from the trial court's order denying their joint motion to set aside the court's decree granting a petition filed by Jo.D. and Ja.D. (“Paternal Grandparents”) to adopt L.D. (“the Child”). We address the following restated issues: ³

1. Whether Indiana Code Section 31-19-9-1 requires Mother's consent to the adoption of L.D. by the Paternal Grandparents.

2. Whether the adoption decree (“Decree” or “Adoption Decree”) is void due to lack of service of process on Mother.

3. Whether the notice provisions in the adoption statute violate Due Process and Equal Protection rights provided in the United States Constitution.

4. Whether the trial court correctly construed Indiana Code Section 31-17-5-9 of the Grandparent Visitation Act (“the Act”) regarding N.E.'s request for visitation with L.D. following the entry of the Decree.

We affirm in part and dismiss in part.

FACTS AND PROCEDURAL HISTORY

On March 1, 2003, while incarcerated, Mother gave birth to L.D. Mother was not married at the time. Sometime shortly after the birth, N.E., a co-worker of Mother, obtained guardianship of the Child.⁴ At some point, paternity of the Child was established in the son of the Paternal Grandparents (“Father”), whom the Paternal Grandparents had adopted as an infant. ⁵

On August 9, 2003, the Paternal Grandparents filed a petition to adopt the Child. In December 2004, the court issued an Agreed Entry (“2004 Agreed Entry”) under the paternity and guardianship cause numbers.⁶ The 2004 Agreed Entry dissolved N.E.'s guardianship of the Child. The order also awarded joint legal custody of the Child to the Paternal Grandparents and Mother; physical custody of the Child to the Paternal Grandparents; non-custodial parenting time to Mother, to be supervised by N.E.; and non-custodial parenting time to N.E. individually. On April 15, 2005, N.E. adopted Mother.⁷

In June 2006, the trial court entered another Agreed Entry (“2006 Agreed Entry”) under the paternity cause number. The 2006 Agreed Entry modified the 2004 Agreed Entry as follows:

2. Mother's visitation with [the Child] is terminated, effective immediately, pending her appearance before the Court and having a hearing to determine Mother's fitness to have contact with [the Child].

3. Visitation between [the Child] and [N.E.] shall be in the nature of non-custodial parenting time, pursuant to the Indiana Supreme Court Parenting Time Guidelines, and include the holiday parenting time schedule, with [certain exceptions listed.]

Mother's App. at 21-22. Mother was incarcerated at the Rockville Correctional Facility from September 2006 through July 2007.

On August 23, 2007, the Paternal Grandparents again filed a Petition for Adoption (“the Petition”). In the Petition, they alleged that Mother's consent was not required for the adoption because “she has knowingly and without justifiable cause failed to communicate significantly with, care for, or support the children [sic] for over one year when she was able to do so. Her whereabouts are unknown.” Id. at 26. The Paternal Grandparents also filed an affidavit alleging that they did not have Mother's address or telephone number; that they had inquired with the Indiana Department of Correction and the Marion County Jail and learned that Mother was not at that time incarcerated; and that Mother had not contacted the Child since August 2005. On October 9, 2007, the Paternal Grandparents filed proof of service of the Petition on Mother by publication in the Indianapolis Recorder. Father filed his consent to the adoption in November 2007. No notice of the Petition was given to N.E.

On January 31, 2008, the Paternal Grandparents dropped L.D. off with N.E. for visitation. During N.E.'s visitation, the Paternal Grandparents attended a hearing on the Petition, and the trial court issued the Decree granting the Petition. When the Paternal Grandparents picked up L.D., they informed N.E. that they had adopted the Child and that her visitation with him would be phased out.

On February 13, 2008, Mother and N.E. filed a joint motion for rule to show cause, to intervene in the adoption, and for relief from judgment (“the Motion”). The Paternal Grandparents filed a motion to dismiss the Motion. N.E. subsequently filed a petition for parenting time pending a hearing on the Motion, and, following a hearing on the visitation request, the trial court granted N.E. one day of visitation per month in April and May 2008. The cause was then transferred to Marion Superior Court 4, which had presided over the paternity case.

On August 26, the court held a hearing and heard evidence solely on the issue of whether the Adoption Decree should be set aside. Following the hearing, the court took the matter under advisement. The trial court later ordered the parties to mediate, but mediation was unsuccessful. On March 31, 2009, the court issued its Findings of Fact, Conclusions of Law, and Judgment (“Judgment”), denying the motion to set aside the Decree. The court found in relevant part:

3. In August 2005, the [Paternal Grandparents] again [sic] petitioned for adoption of [the Child]. In 2007, without notice to [N.E.], publication notice was provided to [Mother]. In support of the publication notice, the [Paternal Grandparents] submitted a sworn affidavit to the adoption court detailing their efforts to locate [Mother] by contacting both the Indiana Department of Correction and the Marion County Jail on August 20, 2007. On August 21, 2007, they inquired of [N.E.] about the whereabouts of [Mother]. Their petition alleged that [Mother] was unfit and that she had not communicated significantly or supported the child for over one year. The [Paternal Grandparents] inquired at [Mother's] last known address, that of her adoptive mother, [N.E.], whether [Mother] was residing there and if [N.E.] knew where she was living. They were given a negative reply to both queries; they subsequently filed notice of the adoption proceeding by publication.

4. The adoption was finalized in Marion Superior Court 8 on January 31, 2008, under cause number 49D08-0708-AD-035277.

5. On or about February 13, 2008, [N.E. and Mother] jointly filed a combined Motion for Rule to Show Cause, To Intervene in Adoption Cause of Action, and For Relief from Judgment or Order So As To Set Aside Adoption Decree. The Motion for Relief from Judgment included Indiana Trial Rules 60(B)(1), (3), (4) and (7).

6. Evidence was taken on [N.E. and Mother's] Motion to Set Aside on August 26, 2008 and November 12, 2008.^[8]

7. The parties, by agreement, were ordered to mediation in the interim; mediation was held on March 10, 2009. Mediation was not successful.

8. At the hearing on August 26, 2008, no evidence was presented by [Mother] under Trial Rule 60(B)(1) regarding mistake, surprise, or excusable neglect. No evidence was presented under Trial Rule 60(B)(3) regarding fraud. Although [Mother] presented evidence that she did not have actual notice of the adoption proceeding she did not allege in her Motions, or present evidence of, a meritorious defense as to the allegation of unfitness. She did present evidence that she believed the court order preventing her from having contact with the child pending further order also meant that she could not contact the [Paternal Grandparents]. She also presented evidence

that she had been in and out of jail from September 21, 2006[,] through December 20, 2007[,] as an explanation as to why she was not able to pay child support. Further, she submitted drug screen results, all of which were negative for drug abuse. [Mother] did not present evidence that would show that a different result would have been reached had there been a trial on the merits, particularly if she had been allowed to participate in the hearing with respect to the allegation that she was unfit.

Mother's App. at 25-26. The court then concluded, in relevant part:

2. The judgment in the adoption case is not void. The [Paternal Grandparents] served notice to [Mother] under the Indiana Rules of Trial Procedure. Since they did not know where [Mother] was living or working, could not locate her personally, and had received no inquiries from [Mother] regarding the child, they were unable to serve notice to her pursuant to TR 4.1. The case of In re R.C. [ D.C.] , 887 N.E.2d 950 (Ind.Ct.App.2008)[,] can be distinguished from this situation because the [Paternal Grandparents] had not been receiving child support payments from [Mother]. The [Paternal Grandparents] were not required to continue to try to locate [Mother] after having made a diligent search. Therefore, service by publication notice pursuant to TR 4.13 was the only remaining option.

3. Since the judgment is not void, [Mother] was required to allege and prove a meritorious defense. Moore v. Terre Haute First Nat['l] Bank, 582 N.E.2d 474, 477 (Ind.Ct.App.1991).... [Mother] admitted that she had not paid child support. She had also failed to show compliance with the conditions [ ]precedent to [the] Court's consideration of a new Petition to Modify Custody, which were set out in the December 2004 Agreed Entry. She was, however, able to demonstrate that she had been drug-free for several months prior to the hearing.

4. Further, [Mother] has been on notice at least since 2004 that the [Paternal Grandparents] desired to adopt the child when the [Paternal Grandparents] filed their first adoption petition. She was aware that her continued non-compliance with Court orders could result in a renewed petition for

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