In re Adoption of D.C.

• Decision Date: 29 May 2008
• Docket Number: No. 22A01-0709-CV-425.,22A01-0709-CV-425.
• Citation: 887 N.E.2d 950
• Parties: In the Matter of the ADOPTION OF D.C., H.R., Appellant-Respondent, v. R.C., Appellee-Petitioner.
• Court: Indiana Appellate Court

887 N.E.2d 950

In the Matter of the ADOPTION OF D.C., H.R., Appellant-Respondent, v. R.C., Appellee-Petitioner.

No. 22A01-0709-CV-425.

Court of Appeals of Indiana.

May 29, 2008.

Karl L. Mulvaney, Nana Quay Smith, Kelly R. Eskew, Bingham McHale LLP, Indianapolis, IN, Attorneys for Appellant.

Debra S. Andry, Mattox & Wilson, LLP, New Albany, IN, Attorney for Appellee.

OPINION

BRADFORD, Judge.

Appellant-Respondent H.R. ("Biological Mother") appeals the trial court's order denying her motion to set aside an adoption decree in favor of Appellee-Petitioner R.C. ("Adoptive Mother") on the basis that Indiana Code section 31-19-14-4 bars her challenge as untimely. Upon appeal, Biological Mother claims that the adoption decree, which was entered without notice to her, was void for lack of personal jurisdiction and violated her due process rights. Concluding that Indiana Code section 31-19-14-4 is unconstitutional as applied to the instant circumstances, we reverse and remand to the trial court for a hearing on the merits of Adoptive Mother's adoption petition.

FACTS AND PROCEDURAL HISTORY¹

H.R. ("Biological Mother") and C.C. ("Father"), whose marriage was dissolved on June 26, 1997, are the biological parents of D.C., who was born May 19, 1994. Pursuant to the dissolution of their marriage, Biological Mother received primary custody of D.C. In July 1997, Biological Mother lost her place of residence, and the trial court subsequently awarded D.C.'s custody to Father. Biological Mother was granted visitation rights and ordered to pay support.

On November 22, 1998, Father married Adoptive Mother. In February 1999, Father joined the military and was stationed at Fort Campbell, Kentucky, near Hopkinsville. He did not notify the divorce court of his move to Kentucky. In August 2001, Biological Mother, who was unaware of Father's move, was notified that her support was to be paid in Christian County, Kentucky. Biological Mother subsequently learned from Father's former neighbor that Father had joined the army and moved to Hopkinsville. Biological Mother registered with and made child support payments through Friend of the Court in Hopkinsville. Biological Mother's payments satisfied only a small part of her full support obligation. Biological Mother visited D.C. in Hopkinsville. According to Biological Mother, Father denied some of her efforts to exercise her visitation rights.

Father was later reassigned to Fort Bragg, North Carolina. He did not notify the divorce court of this change in address. Biological Mother did not visit D.C. after he moved with Father to Fort Bragg. Biological Mother continued to make some child support payments.²

In December 2002, Father moved back to 600 Country Club Drive in New Albany. He lived there until May 2006. He notified Biological Mother about this change of address. Biological Mother re-established visitation. Biological Mother's last visit with D.C. was in approximately December 2002, roughly within a month of Father's return to New Albany.

On June 27, 2003, Biological Mother, through her attorney, petitioned the court for a modification of visitation. The trial court set the matter for an August 26, 2003 hearing. Biological Mother's petition and her attorney's appearance certify that copies of each were sent to Father's address at 600 Country Club Drive. Father claimed he did not receive these documents but agreed that his address listed in the documents was accurate. According to Biological Mother, she did not have sufficient funds for additional legal representation. She contacted multiple attorneys and Legal Aid, none of whom took her case. Biological Mother did not contact Adoptive Mother or Father in the years 2004 or 2005.

On January 27, 2005, Adoptive Mother petitioned the court to adopt D.C. At the time of the 2005 adoption petition, Biological Mother was over $14,000 in arrears on her support obligation and had not contacted D.C. or Father in over a year. The petition listed the last known address for Biological Mother as 9636 Scarborough Avenue in Louisville, Kentucky.

Both parties agree that Biological Mother did not receive notice of the adoption proceedings. Although notice of the adoption petition was sent to Biological Mother at the Scarborough Avenue address, delivery of this notice was unsuccessful. Adoptive Mother's attorney published a three-week notice in the Louisville Voice-Tribune Newspaper. The Voice-Tribune is a weekly newspaper, and the notice was published in the section for classified advertisements. Adoptive Mother made no other attempts to contact Biological Mother.

After the petition was filed, Adoptive Mother and Father continued to receive child support payments from Biological Mother through the Hopkinsville Friend of the Court. Friend of the Court records indicated Biological Mother's Scarborough Avenue address was valid in 2003 but that in June of 2004, Biological Mother's address had changed to 4526 Kennedy Place in Louisville. These records further indicated that on February 28, 2005, approximately a month after the adoption petition was filed, Biological Mother's address had again changed, this time to 6207 Ledgewood, also in Louisville. In addition, Friend of the Court records indicated Biological Mother's outdated addresses, including an El Paso, Texas, address. Father knew Biological Mother's grandmother lived in El Paso, Texas. Adoptive Mother and Father made no attempt to locate Biological Mother's current address through Friend of the Court.

Biological Mother's child support payments for years 2003 through the final hearing totaled $4403.10, including a payment made three days before the final adoption hearing. On July 5, 2005, the trial court granted Adoptive Mother's adoption petition and issued an adoption decree. Father subsequently notified Friend of the Court of the adoption, indicated he wished to terminate support, and requested that it notify Biological Mother of this. Biological Mother continued to make child support payments after the adoption decree was entered.³ These payments included a single payment of $62.31, on July 16, 2005, as well as nine payments totaling $2070 in 2006, and six payments totaling $2112 in 2007. Father received all of Biological Mother's support payments.

In January of 2007, Biological Mother discovered that D.C. had been adopted by Adoptive Mother. Biological Mother contacted Legal Volunteers. On March 13, 2007, Biological Mother filed her motion for relief from judgment alleging, inter alia, that the judgment was void for lack of personal service. In denying Biological Mother's motion, the trial court determined that the adoption proceedings had been defective for lack of personal notice but that pursuant to the terms of Indiana Code section 31-19-14-4, the time period to challenge the adoption due to any such defect had expired. This appeal follows.

DISCUSSION AND DECISION

On appeal, Biological Mother challenges the trial court's denial of her motion to set aside the decree by claiming that the decree was void for lack of personal jurisdiction due to Adoptive Mother's defective service of process. Adoptive Mother responds by arguing that her efforts at service substantially complied with the Indiana Trial Rules. Adoptive Mother further argues that regardless of the adequacy of service, Biological Mother is barred from challenging the adoption decree on any basis pursuant to Indiana Code section 31-19-14-4.

I. Lack of Personal Jurisdiction

A. Standard of Review

The decision of whether to set aside a judgment is usually given substantial deference on appeal. See Adoption of J.D.C., 751 N.E.2d 747, 748 (Ind.Ct.App. 2001). Personal jurisdiction, however, is a question of law. LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 965 (Ind.2006) (citing Anthem Ins. Co., Inc. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1238 (Ind.2000), superseded by rule on other grounds). As with other questions of law, a determination of the existence of personal jurisdiction is entitled to de novo review by appellate courts. Id. This court does not defer to the trial court's legal conclusion as to whether personal jurisdiction exists. Id. However, personal jurisdiction turns on facts, and findings of fact by the trial court are reviewed for clear error. Id. Clear error exists where the record does not offer facts or inferences to support the trial court's findings or conclusions of law. Rogers v. Rogers, 876 N.E.2d 1121, 1126 (Ind.Ct.App.2007), trans. denied.

B. Analysis

Biological Mother argues that the trial court lacked personal jurisdiction over her in the instant case and that the adoption decree is therefore necessarily null and void. Ineffective service of process prohibits a trial court from having personal jurisdiction over a respondent. Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 659 (Ind.Ct. App.2001). A judgment rendered without personal jurisdiction over a defendant violates due process and is void. See Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind.1998). Because a void judgment is a complete nullity and without legal effect, it may be collaterally attacked at any time, and the "reasonable time" limitation under Indiana Trial Rule 60(B)(6)⁴ does not apply. See id. at 1154, 1156.

The question as to whether process was sufficient to permit a trial court to exercise jurisdiction over a party involves two issues: whether there was compliance with the Indiana Trial Rules regarding service, and whether such attempts at service comported with the Due Process Clause of the Fourteenth Amendment. Munster v. Groce, 829 N.E.2d 52, 58 (Ind. Ct.App.2005).

1. Whether Process Complied with Indiana Trial Rules

Biological Mother first argues that service of process in the instant case did not comply with the Indiana Trial Rules. Here, the Notice of Adoption stated that Biological Mother's consent was not required because Biological Mother had abandoned D.C. In circumstances where such...