                                                             Aug 12 2015, 9:44 am
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEY FOR APPELLEES
Patrick A. Duff                                        Katharine Vanost Jones
Duff Law, LLC                                          Evansville, Indiana
Evansville, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Adoption of                       August 12, 2015
E.D.,                                                  Court of Appeals Case No.
                                                       82A01-1412-AD-520
K.R.,
                                                       Appeal from the Vanderburgh
Appellants-Respondents,                                Superior Court
                                                       The Honorable Brett Niemeier,
        v.                                             Judge
                                                       Case No. 82D07-1309-AD-120
A.D.S. and A.S.,
Appellees-Petitioners




Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1412-AD-520 | August 12, 2015   Page 1 of 8
                                        Case Summary
[1]   K.R. (“biological mother”) appeals the trial court’s denial of her Trial Rule

      60(B) motion for relief from judgment. She argues that she was not served with

      notice of the adoption proceedings regarding her son, E.D. Because the

      evidence shows that biological mother was personally served with notice of the

      proceedings, we affirm.



                           Facts and Procedural History
[2]   Biological mother gave birth to E.D. in October 2012. E.D. was born with

      drugs in his system and was hospitalized for ten days. As a result, the Indiana

      Department of Child Services (DCS) filed a petition alleging that E.D. was a

      child in need of services (CHINS), and E.D. was removed from biological

      mother’s care. In December, two-month-old E.D. was placed with A.D.S. and

      A.S. (“adoptive parents”), his paternal aunt and uncle. E.D. has been in their

      care since that time.


[3]   Biological mother was ordered to participate in substance-abuse services, attend

      Drug Court, refrain from using drugs, and submit to random drug screens. She

      was unsuccessful: she failed to appear for eighteen drug screens in a four-month

      period, tested positive for a combination of Oxycodone, Oxymorphone, and

      methamphetamine nine times, and was discharged from Drug Court due to

      noncompliance. In May 2013 biological mother sought inpatient drug

      treatment, but she left the treatment facility before completing treatment.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1412-AD-520 | August 12, 2015   Page 2 of 8
      Biological mother also failed to attend a number of CHINS proceedings, and

      DCS filed a petition to terminate her parental rights.


[4]   In September 2013—biological mother’s parental rights had not yet been

      terminated—adoptive parents filed a petition to adopt E.D. and alleged that

      biological mother’s consent was not necessary. E.D.’s biological father, C.D.

      (“biological father”), consented to the adoption. The trial court held a hearing

      on the adoption petition in December 2013. At the hearing, biological father

      testified that he served biological mother with a “packet” of “three papers”

      regarding the adoption proceedings:

              I gave her the whole packet and then there was another paper that they
              g[a]ve me that I was supposed to sign and say where she was at. Like
              where I served her and the date. And then there was another paper
              that said the exact same thing, but then at the bottom of it[,] it had a
              place for her signature for her to sign and say that she knew about it.


      Tr. p. 10. Biological father said that biological mother refused to sign the

      papers and they fought about E.D. being adopted. Id. at 11. He also indicated

      that biological mother planned to attend the adoption-petition hearing, but she

      was not present. Id. The trial court continued the hearing to January 2014.

      Biological mother did not appear at the January 2014 hearing either, and her

      attorney indicated that he had not heard from her in some time.1 Over the




      1
       This attorney represented biological mother in the CHINS case and appeared on her behalf in the adoption
      proceedings, though he was not in contact with biological mother at that time. A new attorney represented
      biological mother in her request for Trial Rule 60(B) relief from judgment.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1412-AD-520 | August 12, 2015         Page 3 of 8
      attorney’s objection, biological mother was defaulted. The trial court

      concluded that biological mother’s consent to the adoption was not necessary

      and granted the adoption petition. Id. at 17, 20.


[5]   Biological mother later filed a motion from relief from judgment. In relevant

      part, biological mother argued that she was not served with notice of the

      adoption proceedings. At a hearing on her motion, biological mother testified

      that she received only one paper from biological father and she tore it up,

      thinking it was related to health care. Id. at 40. She also denied speaking to

      biological father about E.D. being adopted. Id. Biological father testified again,

      and stated that the three papers he gave to biological mother were copies of the

      same document—a summons. Id. at 26. Contrary to biological mother’s

      testimony, he again recalled fighting with biological mother about E.D. being

      adopted. Id. at 31. Adoptive mother, meanwhile, testified that she watched her

      attorney prepare “the packet” that biological father had delivered, and that it

      contained a summons, notice to appear, and the adoption petition. Id. at 62,

      64.


[6]   The trial court ultimately rejected biological mother’s lack-of-notice claim,

      explaining that she had repeatedly failed to appear when previously summoned

      to court and biological father had personally served her with notice of the

      adoption proceedings:

              In the [CHINS proceedings], [biological mother] failed to appear
              [three times]. During the [CHINS proceedings], the Court issued writs
              on her first two failure[-]to[-]appears. The Court also found her in
              contempt and sentenced her to jail for not complying with the Court’s
      Court of Appeals of Indiana | Memorandum Decision 82A01-1412-AD-520 | August 12, 2015   Page 4 of 8
              orders. [Biological mother] failed to appear in this cause as she was
              afraid she would be arrested as she had been previously. [Biological
              mother’s attorney] attempted to get her to appear, but she refused.
              Even though [biological mother] did not read the documents given to
              her by [biological father], she was properly served and had notice of
              the hearing.
              [Biological mother] was served with a notice, the [adoption] petition,
              and summons to appear. While months after the fact [biological
              father] misidentified the documents that he personal[ly] served on
              [biological mother], the evidence presented by [biological father]
              substantiates that “the packet” he gave her contained these documents.
              [Adoptive parents’ attorney] is an experienced, highly reputable
              attorney who would not give the wrong paperwork to be served.
              [Biological father] originally testified only five days after giving
              [biological mother] the documents that he gave her “the packet.” A
              duplicate packet [that adoptive parents’ attorney] filed with the court
              contained the [adoption] petition, notice, and summons.
                                     *       *       *       *       *
              The notice to appear stated that [biological mother] should appear on
              December 10th, but [she] failed to appear. The Court reset the default
              hearing to January 8, 2014 . . . .[Biological mother] again failed to
              appear.


      Appellant’s App. p. 71. The court denied the motion for relief from judgment.

      Biological mother now appeals.


                                 Discussion and Decision
[7]   Biological mother appeals the trial court’s denial of her Trial Rule 60(B) motion

      for relief from judgment. “The decision of whether to grant or deny

      a Trial Rule 60(B) motion for relief from judgment is within the sound,

      equitable discretion of the trial court.” Stonger v. Sorrell, 776 N.E.2d 353, 358

      (Ind. 2002) (citation omitted). We will only reverse where the trial court has


      Court of Appeals of Indiana | Memorandum Decision 82A01-1412-AD-520 | August 12, 2015   Page 5 of 8
      abused its discretion. Id. (citation omitted). An abuse of discretion occurs if

      the trial court’s decision is against the logic and effect of the facts and

      circumstances before the court or the reasonable inferences therefrom. Shane v.

      Home Depot USA, Inc., 869 N.E.2d 1232, 1232 (Ind. Ct. App. 2007).


[8]   The sole question before us is whether biological mother was served with notice

      of the adoption proceedings.2 “[A] judgment entered where there has been

      no service of process is void for want of personal jurisdiction.” In re Adoption of

      L.D., 938 N.E.2d 666, 669 (Ind. 2010) (citation omitted). If, as she claims,

      biological mother did not receive notice, her Trial Rule 60(B) motion should

      have been granted because the adoption was void. Id.


[9]   Indiana Trial Rule 4.1 provides the following for service of process:

               (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; or
               (2) delivering a copy of the summons and complaint to him personally; or
               (3) leaving a copy of the summons and complaint at his dwelling
               house or usual place of abode; or
               (4) serving his agent as provided by rule, statute or valid agreement.




      2
       The adoptive parents argue that biological mother must show a meritorious defense in order to prevail on
      appeal, but we confine our analysis, as the trial court did, to the issue of notice. Likewise, we do not address
      biological mother’s arguments regarding the propriety of serving adoption documents on one of her
      attorneys; we need only consider the issue of biological father’s personal service on biological mother.

      Court of Appeals of Indiana | Memorandum Decision 82A01-1412-AD-520 | August 12, 2015               Page 6 of 8
       (Emphasis added).


[10]   The evidence shows that biological father personally served biological mother

       with notice of the adoption proceedings.3 The record shows, as the trial court

       found, that biological mother routinely failed to appear for hearings regarding

       E.D., despite having adequate notice. And at a hearing on the adoption

       petition, biological father testified that he personally served mother with “the

       packet” of “three papers,” which was later shown to be a notice, the adoption

       petition, and a summons to appear. Although biological father later

       misidentified these documents, the trial court examined a copy of “the packet”

       and determined that it contained the required documents:

                While months after the fact [biological father] misidentified the
                documents that he personal[ly] served on [biological mother], the
                evidence presented by [biological father] substantiates that “the
                packet” he gave her contained these documents. [Adoptive parents’
                attorney] is an experienced, highly reputable attorney who would not
                give the wrong paperwork to be served. [Biological father] originally
                testified only five days after giving [biological mother] the documents
                that he gave her “the packet.” A duplicate packet [that adoptive
                parents’ attorney] filed with the court contained the [adoption]
                petition, notice, and summons.
       Appellant’s App. p. 71.




       3
        While the evidence is clear in this case that biological mother received notice of the adoption proceedings,
       having a party with adverse interests serve another party may be problematic in other cases.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-AD-520 | August 12, 2015              Page 7 of 8
[11]   Biological mother argues that biological father’s testimony supports her claim

       that she was not served with the required documents. See Appellant’s Br. p. 13-

       14. Somewhat confusingly, she also asserts that she and biological father were

       under the influence of drugs when he served her with the adoption paperwork.

       Id. at 14-15. To this end, biological mother invites us to assess the credibility of

       witnesses and reweigh the evidence before the trial court, which we will not do.

       We affirm the trial court’s conclusion that biological mother was personally

       served with notice of the adoption proceedings; and, as a result, we affirm the

       court’s denial of her Trial Rule 60(B) motion for relief from judgment.


[12]   Affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1412-AD-520 | August 12, 2015   Page 8 of 8
