In re Adoption of IKEW, 71A03-9909-CV-344.

CourtCourt of Appeals of Indiana
Citation724 N.E.2d 245
Docket NumberNo. 71A03-9909-CV-344.,71A03-9909-CV-344.
PartiesIn re The ADOPTION OF I.K.E.W. William W. Cummings and Mary Susan Cummings, Appellants, v. Joseph and Saundra Roberts, St. Joseph County Office of Family and Children, and Guardian Ad Litem, Appellees.
Decision Date10 February 2000

724 N.E.2d 245

In re The ADOPTION OF I.K.E.W.
William W. Cummings and Mary Susan Cummings, Appellants,
v.
Joseph and Saundra Roberts, St. Joseph County Office of Family and Children, and Guardian Ad Litem, Appellees

No. 71A03-9909-CV-344.

Court of Appeals of Indiana.

February 10, 2000.


724 N.E.2d 247
Debra Voltz-Miller, Fred R. Hains, South Bend, Indiana, for Attorneys for Appellants

Martha L. Wischmeyer, Valparaiso, Indiana, Attorney for Appellees Joseph and Saundra Roberts.

John E. Broden, Botkin & Leone, South Bend, Indiana, for Attorney for Appellee St. Joseph County Office of Family and Children.

724 N.E.2d 246
OPINION

BROOK, Judge.

Case Summary

Appellants William W. Cummings ("William") and Mary Susan Cummings ("Mary") (collectively, "the Cummings") appeal the trial court's denial of the following: (1) the Cummings' motion to consolidate their petition to adopt William's biological granddaughter, I.K.E.W., with the adoption proceedings initiated by appellees Joseph and Saundra Roberts (collectively, "the Roberts"); and (2) the Cummings' motion to intervene and request for relief from the trial court's judgment granting the Roberts' adoption of I.K.E.W.

We reverse and remand.

Issues

The Cummings present two issues for our review, only one of which we find to be dispositive: whether the trial court erred when it failed to notify them of a hearing on the Roberts' adoption petition.

Facts and Procedural History

The facts most favorable to the trial court's judgment indicate that I.K.E.W., born on January 11, 1994, was placed in foster care with the Roberts on July 16, 1994, by the St. Joseph Office of Family and Children ("the OFC"). On October 22, 1998, the St. Joseph County Juvenile Court terminated the parental rights of I.K.E.W.'s natural parents. On October 23, 1998, the Cummings filed a petition for her adoption in St. Joseph County Probate Court under cause number 71J01-9810-AD-121. On that date, the Cummings also filed a request for change of judge pursuant to Ind. Trial Rule 76(B).1 The trial court granted the Cummings' request that same day and appointed a panel of three special judges pursuant to Ind. Trial Rule 79(F)(1)2 from which the Cummings and

724 N.E.2d 248
the OFC could choose a judge to assume jurisdiction of the Cummings' petition

On October 27, 1998, the Roberts also filed a petition to adopt I.K.E.W. in St. Joseph County Probate Court under cause number 71J01-9810-AD-122. The Cummings were never served with notice of this petition; thus, they never filed an appearance in this cause or an objection thereto. On November 2, 1998, the OFC filed an objection to the Cummings' petition, stating that it had "an alternative permanency plan for [I.K.E.W.]" On November 9, 1998, the Cummings struck a judge from the panel submitted by the trial court. Several months later, on February 22, 1999, the OFC filed its consent to the Roberts' adoption of I.K.E.W. On March 22, 1999, the trial court scheduled a hearing on the Roberts' petition for April 9, 1999, at 1:00 p.m. On April 6, 1999, the Cummings filed a motion for continuance of the Roberts' hearing and for consolidation of the two causes, which contained the following language:

4. Petitioners' correspondence with the [OFC] and their filings with this Court, show they have repeatedly expressed a desire to have a relationship with [I.K.E.W.] and consistently requested visitation, guardianship and/or adoption of [I.K.E.W.]
5. While Petitioners have received no notice, it is their understanding that a final hearing on [the Roberts' petition] has been set for Friday, April 9, 1999. Petitioners would respectfully request this hearing be postponed until [the Cummings' petition] has also been fairly and justly considered and evaluated.
6. In addition, Petitioners request pursuant to [Ind. Trial Rule 42]3 that these two causes be consolidated into one action in that there are common questions of fact and law which need to be addressed at one time and in one case.
7. Lastly, pursuant to [IND.CODE §] XX-XX-XX-X, Petitioners request that the Clerk set a hearing to hear and rule upon the Objection filed by the [OFC].
WHEREFORE, Petitioners pray that the Court consolidate the above referenced cases, grant a continuance so that [the Cummings' petition] may be fairly and justly considered, that a hearing be scheduled on the [OFC's] Objection and for any and all other relief which the Court finds to be appropriate.

The trial court scheduled a hearing on the Cummings' motion on April 9, 1999, at 1:30 p.m.

The trial court conducted a hearing on the Roberts' petition on April 9, 1999, at 1:00 p.m. and entered an order granting their adoption of I.K.E.W. One-half hour later, the trial court informed the Cummings that it had no jurisdiction "to hear anything on [their] case" because "no one else" had struck a judge from the panel it had submitted in response to their request for change of judge.4 When the Cummings' attorney asserted that the court had two pending petitions to adopt the same child, the trial court responded,

This one is I don't have jurisdiction on this case, so it's not before this Court, it is still kind of in limbo waiting for the strike of the second party, the second Judge from the panel which hasn't happened. I am not sure who is [to] blame for that, is it the Clerk or I am not sure how the Clerk would know to do that
724 N.E.2d 249
unless somebody would notify the Clerk that someone else, a non-moving party [the OFC] failed to timely strike, which is what happened here. But I don't think anything can happen in this case until that Judge is stricken.

The clerk subsequently struck a second judge from the panel, and the remaining judge filed his acceptance of his appointment to the Cummings' cause on April 12, 1999.

On April 29, 1999, the Cummings filed a motion to intervene in the Roberts' cause and requested relief from the trial court's judgment granting the Roberts' petition. After a hearing on May 10, 1999, the trial court denied the Cummings' motion, giving rise to this appeal.

Discussion and Decision

The Cummings appeal from their motion for relief from judgment pursuant to Ind. Trial Rule 60(B). In their motion, the Cummings requested to intervene in the Roberts' cause, presumably under Ind. Trial Rule 24(A) and (C),5 and asserted that they had been...

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