MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      Apr 05 2017, 9:33 am
court except for the purpose of establishing                        CLERK
the defense of res judicata, collateral                         Indiana Supreme Court
                                                                   Court of Appeals
estoppel, or the law of the case.                                    and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEES
Victoria L. Bailey                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Marjorie Newell
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

S.H.,                                                     April 5, 2017
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          49A02-1610-JC-2403
        v.                                                Appeal from the Marion Superior
                                                          Court
Marion County Department of                               The Honorable Marilyn Moores,
Child Services, et al.,                                   Judge
Appellees-Petitioners                                     The Honorable Diana Burleson,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49D09-1312-JC-17336



Altice, Judge.


                                          Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017    Page 1 of 8
[1]   This CHINS case began in December 2013, but S.H. (Father) did not appear in

      the case until July 2016, shortly after the permanency plan regarding Z.B.

      (Child) changed from reunification to adoption. Father claimed to have been

      previously unaware of the proceedings. With the assistance of appointed

      counsel, Father filed a motion for relief from judgment pursuant to Indiana

      Trial Rule 60(B)(6), claiming that the CHINS adjudication as to him was void

      due to ineffective service of process. He appeals the trial court’s denial of this

      motion.


[2]   We affirm.


                                           Facts & Procedural History


[3]   The Indiana Department of Child Services (DCS) removed Child – then age ten

      – from the care of his mother (Mother) in Indianapolis on December 6, 2013,

      after Child was physically abused by Mother’s boyfriend. Because Father’s

      whereabouts were unknown, Child was placed with his maternal grandmother,

      where he has remained.


[4]   DCS filed a CHINS petition on December 10, 2013. That same day, the trial

      court held a detention hearing, at which Mother appeared but not Father.1 The

      court then continued the initial hearing until December 27. DCS made diligent

      efforts to locate Father and, on December 16, sent service by certified mail to




      1
          The CHINS proceedings also involved Child’s half-brother K.B., who has a different father than Child.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017               Page 2 of 8
      935 E. Dixon Street in Kokomo.2 This was the address for Father’s father,

      D.H., as well as the last known address Mother had for Father. D.H. signed

      the green card for the certified mailing on December 18, 2013. Additionally, a

      family case manager apparently spoke with Father and informed him of a

      hearing set for January 10, 2014. Father did not appear for that or any other

      hearings.


[5]   On February 21, 2014, Mother entered into an agreement with DCS and

      admitted that Child was a CHINS. Child was so adjudicated as to Mother.

      The court then set a fact-finding hearing as to Father for March 14, 2014. More

      than two weeks prior to this hearing, DCS sent a letter to Father at the Dixon

      Street address to inform him of the upcoming hearing.


[6]   The trial court held the March 14, 2014 hearing in Father’s absence and

      adjudicated Child a CHINS as to Father. The court ordered no services for

      Father “until he makes himself available to the Court and demonstrates the

      willingness and ability to appropriately care for the child.” Appellant’s Appendix,

      Vol. III at 103.


[7]   The CHINS proceedings continued for another two years without Father’s

      involvement. On March 11, 2016, the trial court changed the permanency plan

      for Child from reunification to adoption. Termination proceedings began on




      2
       This certified mailing included a letter from DCS, a summons, an advisement of rights form, and the
      CHINS petition.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017            Page 3 of 8
      April 13, 2016, under Cause No. 49D09-1604-JT-316. Father appeared in the

      termination case on May 31, 2016, at which time he was appointed a public

      defender. Father filed a motion to dismiss in the termination case on June 21,

      2016, arguing that he had not been properly served in the underlying CHINS

      action. This motion was denied.


[8]   In the meantime, Father appeared for the first time in the CHINS case at a

      review hearing on July 1, 2016, and the court appointed the same public

      defender that Father had for the termination case. On July 19, 2016, in the

      CHINS case, Father filed a motion for relief from judgment based on T.R.

      60(B)(6). He argued that the March 14, 2014 judgment entered against him was

      void because the court lacked personal jurisdiction over him.


[9]   The trial court held a hearing on Father’s motion on August 12, 2016. Father

      testified that he lived with his father at the Dixon Street address for several

      months in 2013 – two months in the spring and then again for a little over a

      month in September/October. Father indicated that he then stayed with his

      girlfriend for about a month before he “began to couch surf” for several months.

      Transcript at 20. He explained, “I didn’t have a designated actual spot that was

      in my name up until about April [2014] up in Kokomo.” Id. In April 2014, he

      moved into an apartment in Kokomo and stayed there until April 2015. He

      then moved to another apartment in Kokomo before moving to Indianapolis in

      January 2016.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017   Page 4 of 8
[10]   Father testified that between September 2013 and April 2016 his mail came to

       either the Dixon Street address in Kokomo or his mother’s address in

       Indianapolis. He explained, “I never did that change of mail thing”. Id. at 23.

       Accordingly, he continued receiving mail at the Dixon Street address for more

       than two and a half years after September 2013. Additionally, Father presented

       the trial court with a current state identification card (expiring 2019) that listed

       the Dixon Street address.


[11]   The trial court took Father’s T.R. 60(B) motion under advisement and then

       issued its decision on September 23, 2016, denying the motion. Father now

       appeals.3


                                              Discussion & Decision


[12]   Father brought his motion for relief from judgment under T.R. 60(B)(6),

       alleging that the March 14, 2014 judgment was void for lack of personal

       jurisdiction because he had no notice of the CHINS proceedings. Specifically,

       he argues that he received insufficient service of process because he did not live

       with his father at the time of service.


[13]   Personal jurisdiction is a question of law and, thus, our review is de novo.

       Jordache White & Am. Transp., LLC v. Reimer, 61 N.E.3d 301, 305 (Ind. Ct. App.

       2016), trans. denied. Although we do not defer to the trial court’s legal




       3
           The termination proceedings have been stayed pending the outcome of this appeal.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017   Page 5 of 8
       conclusion as to whether personal jurisdiction exists, we will review its findings

       of fact for clear error to the extent that personal jurisdiction turns on disputed

       facts. Id.


[14]   It is well established that a trial court may not acquire personal jurisdiction over

       a party if service of process is inadequate. See Anderson v. Wayne Post 64, Am.

       Legion Corp., 4 N.E.3d 1200, 1206 (Ind. Ct. App. 2014), trans. denied. The

       existence of personal jurisdiction is a constitutional requirement to rendering a

       valid judgment, mandated by the Due Process Clause of the Fourteenth

       Amendment to the United States Constitution. Id.


[15]   Indiana Trial Rule 4.1 provides for service upon an individual. Relevant here,

       T.R. 4.1(A)(1) provides:


               (A) In General. Service may be made upon an individual, or an
               individual acting in a representative capacity, by:


               (1) sending a copy of the summons and complaint by registered
               or certified mail or other public means by which a written
               acknowledgment of receipt may be requested and obtained to his
               residence, place of business or employment with return receipt
               requested and returned showing receipt of the letter




       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017   Page 6 of 8
       Father argues that DCS did not comply with T.R. 4.1(A)(1) because the

       certified mailing was not sent to “his residence”. 4


[16]   Father’s testimony indicates that he was couch surfing within Kokomo at the

       time his father signed for the certified mailing on December 18, 2013. 5

       Although he had not stayed at the Dixon Street address in Kokomo since

       sometime in October 2013, Father testified that he kept on receiving his mail at

       this address well beyond 2013. Additionally, Father continued carrying a

       current state identification card that listed the Dixon Street address. On these

       facts, it is evident that in December 2013 Father continued to use the Dixon

       Street as his residence.6


[17]   Service was properly made pursuant to T.R. 4.1(A)(1), and the trial court

       obtained personal jurisdiction over Father, once D.H. signed the green card on

       Father’s behalf at the Dixon Street address. Accordingly, the trial court did not

       err in denying Father’s motion for relief from judgment.


[18]   Judgment affirmed.




       4
        Father does not argue that his father could not sign the green card as an individual acting in a representative
       capacity for Father. Accordingly, we do not address the issue.
       5
        Father explained that for about six months after living with his father, he did not have “a designated actual
       spot” in Kokomo that was in his name. Transcript at 20.
       6
         Father notes that the trial court did not expressly find that the Dixon Street address was Father’s residence
       at the time of service. In its order, the trial court made several written findings but no conclusions. The
       findings, however, clearly lead to the trial court’s implicit conclusion that the address was Father’s residence
       for purposes of T.R. 4.1(A)(1).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017                 Page 7 of 8
Kirsch, J. and Mathias, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017   Page 8 of 8
