                                                                            FILED
                                                                        Nov 26 2019, 8:33 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Matthew R. Strzynski                                      Nathan A. Leach
Indianapolis, Indiana                                     Herrin & Leach, LLC
                                                          Indianapolis, Indiana
                                                          Sean Devenney
                                                          Drewry Simmons Vornehm, LLP
                                                          Carmel, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

J.F.,                                                     November 26, 2019
Appellant,                                                Court of Appeals Case No.
                                                          19A-AD-1373
        v.                                                Appeal from the Marion Superior
                                                          Court
L.K. and G.K.,                                            The Honorable Steven R.
Appellees.                                                Eichholtz, Judge
                                                          The Honorable Kelly M. Scanlan,
                                                          Pro Tempore
                                                          Trial Court Cause No.
                                                          49D08-1405-AD-17504



Brown, Judge.




Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019                           Page 1 of 10
[1]   J.F. appeals the dismissal of his motion for relief from judgment with respect to

      a decree of adoption entered in August 2015. We affirm.

                                        Facts and Procedural History

[2]   J.F. and E.F. were married in December 2009, and A. (“Child”) was born in

      November 2010. On July 30, 2012, an order was entered under cause number

      41D01-1206-GU-82 1 (“Cause No. 82”) appointing L.K. and G.K. (“Adoptive

      Parents”), Child’s maternal grandparents, as Child’s guardians.


[3]   On May 28, 2014, Adoptive Parents filed a petition for adoption under cause

      number 49D08-14005-AD-17504 (“Cause No. 17504”), the cause from which

      this appeal arises, stating that J.F. and E.F. had been separated since Child’s

      birth, E.F. and Child had resided at Adoptive Parents’ home since J.F. and E.F.

      separated, and Child had been under Adoptive Parents’ care and custody all of

      her life. Adoptive Parents alleged that E.F. consented to their adoption of

      Child and that J.F.’s consent was not required because, for a period of at least

      one year, he knowingly failed to provide for the care and support of Child when

      able to do so and had made only token efforts to support or communicate with

      Child. J.F. was served with a summons on June 3, 2014, and filed an objection

      to contest the adoption on June 18, 2014, and Attorney David Page filed an

      appearance for J.F. on July 2, 2014.




      1
          The case was later transferred from 41D01-1206-GU-82 to 41C01-1206-GU-82.


      Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019           Page 2 of 10
[4]   On July 28, 2014, E.F. filed a petition for dissolution of marriage under cause

      number 41C01-1407-DR-465 (“Cause No. 465”). On March 5, 2015, an

      Agreed Entry signed by J.F., E.F., and Adoptive Parents was entered in Cause

      Nos. 82 and 465 which provided J.F. with supervised parenting time every

      other weekend for four months, continued visits for two months if no concerns

      were raised, and upon successful completion of the six-month period,

      unsupervised visits every other weekend, and it provided J.F. had accumulated

      an arrearage of $22,919. An April 8, 2015 entry in the chronological case

      summary (“CCS”) in Cause No. 465 indicates a protective order was issued

      pursuant to the Agreed Entry.


[5]   On April 29, 2015, under Cause No. 17504, Adoptive Parents filed a motion for

      a contested hearing. On May 11, 2015, the court issued an order to appear

      setting a hearing for 1:30 p.m. on July 20, 2015, and stating pending matters

      may be determined in the absence of a party. On May 22, 2015, Attorney Page

      filed a motion to withdraw appearance to which he attached a letter to J.F.

      dated May 12, 2015, informing him of the date, time, and location of the July

      20, 2015 hearing, and the court granted the motion to withdraw appearance.

      J.F. did not appear for the July 20, 2015 hearing. On August 10, 2015, the

      court entered a decree of adoption. The decree stated that J.F. had been duly

      notified of the date, time, and location of the July 20, 2015 hearing but failed to

      appear and that the court delayed the start of the hearing for nearly forty

      minutes to permit him to appear. The court found that J.F.’s consent to the

      adoption was not necessary, Child had been in Adoptive Parents’ care since


      Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019     Page 3 of 10
      birth, and Child’s welfare and best interests were protected and promoted by the

      grant of the adoption.


[6]   An entry dated June 7, 2016, in the CCS in Cause No. 465 states: “[E.F.]

      appears in person, pro se. [J.F.] appears in person, pro se. Parties notify the

      Court the minor child of the parties has been adopted.” A June 7, 2016 CCS

      entry in Cause No. 82 states: “Parties provide notification that the minor child

      has been adopted.”


[7]   On June 21, 2017, under Cause No. 17504, J.F. filed a motion for relief from

      judgment in which he argued that the adoption decree was entered five months

      after the Agreed Entry in Cause Nos. 465 and 82, that he did not reside at the

      address to which Attorney Page sent his May 2015 letter, that he “did not have

      notice or knowledge of the adoption or any hearing thereon,” and that the

      decree was void. Appellant’s Appendix Volume II at 49. On December 20,

      2018, Adoptive Parents filed a motion to dismiss J.F.’s motion for relief from

      judgment citing Ind. Code §§ 31-19-14-2 and -4. On January 31, 2019, the court

      held a hearing.

[8]   On March 5, 2019, the court entered an order dismissing J.F.’s motion for relief

      from judgment and providing:

              [J.F.’s] Motion for Relief was filed on June 21, 2017, almost two (2) years
              after the August 10, 2015 adoption decree. Because the time for challenging
              the adoption decree as set forth in Indiana Code § 31-19-14-2 had expired
              when [J.F.] filed his Motion for Relief, [he] is precluded from challenging
              the adoption decree pursuant to Indiana Code § 31-19-4-4.

      Id. at 10. J.F. filed a motion to correct error, which the court denied.

      Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019      Page 4 of 10
                                                    Discussion

[9]    J.F. claims the trial court erred in dismissing his motion for relief from

       judgment. He acknowledges that he did not meet the strict deadline imposed

       by Ind. Code §§ 31-19-14-2 and -4, but argues the statutes are not an absolute

       bar. He argues that “without notice to [him], the trial court approved the

       adoption,” that “[d]espite [his] verification that he had no notice of the final

       hearing, the trial court construed the Indiana statutes in a manner that

       effectively guarantees that [he] may never see his Child again,” and that “[t]his

       interpretation of the Indiana statutes is contrary to [his] constitutionally

       protected interests of caring for and raising his Child.” Appellant’s Brief at 10.

       He argues this is not a case where he is trying to set aside a default judgment on

       credit card debt and he is seeking reversal so that he may exercise the custodial

       rights to which Adoptive Parents agreed. Adoptive Parents maintain that J.F.’s

       motion was untimely under Ind. Code §§ 31-19-4-2 and -4.


[10]   We generally review trial court rulings on motions to dismiss, for relief from

       judgment, and to correct error for an abuse of discretion, and we review a

       matter of statutory interpretation de novo. See Study v. State, 24 N.E.3d 947,

       950 (Ind. 2015), cert. denied, 136 S. Ct. 412 (2015); Speedway SuperAmerica, LLC

       v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied. Relief from

       judgment under Ind. Trial Rule 60 is an equitable remedy within the trial

       court’s discretion. In re Adoption of C.B.M., 992 N.E.2d 687, 691 (Ind. 2013).

       Ind. Trial Rule 60(B) provides in part:



       Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019        Page 5 of 10
               On motion and upon such terms as are just the court may relieve a party or
               his legal representative from a judgment, including a judgment by default,
               for the following reasons:

                        (1) mistake, surprise, or excusable neglect;
                                                          *****
                        (3) fraud (whether heretofore denominated intrinsic or extrinsic),
                        misrepresentation, or other misconduct of an adverse party;
                                                          *****
                        (6) the judgment is void;
                                                          *****

                         (8) any reason justifying relief from the operation of the judgment,
                        other than those reasons set forth in subparagraphs (1), (2), (3), and
                        (4).

               The motion shall be filed within a reasonable time for reasons (5), (6), (7),
               and (8), and not more than one year after the judgment, order or proceeding
               was entered or taken for reasons (1), (2), (3), and (4). A movant filing a
               motion for reasons (1), (2), (3), (4), and (8) must allege a meritorious claim
               or defense. . . .

       The burden is on the movant to demonstrate that relief is both necessary and

       just. Wagler v. W. Boggs Sewer Dist., Inc., 980 N.E.2d 363, 372 (Ind. Ct. App.

       2012), trans. denied, cert. denied, 574 U.S. 1131 (2014).


[11]   Ind. Code §§ 31-19-14 govern limitations on direct or collateral attacks of

       adoption decrees. Ind. Code § 31-19-14-2 provides:

               Except as provided in section 3 of this chapter, if a person whose parental
               rights are terminated by the entry of an adoption decree challenges the
               adoption decree not more than the later of:
               (1)      six (6) months after the entry of an adoption decree; or
               (2)      one (1) year after the adoptive parents obtain custody of the child;

       Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019          Page 6 of 10
                  the court shall sustain the adoption decree unless the person challenging the
                  adoption decree establishes, by clear and convincing evidence, that
                  modifying or setting aside the adoption decree is in the child’s best interests.

[12]   Ind. Code § 31-19-14-3 provides:

                  (a) A person who consents to an adoption may not withdraw the consent to
                  adoption after the entry of the adoption decree under IC 31-19-10-4.
                  (b) A person who is served with notice of an adoption under IC 31-19-4 may
                  not:
                           (1) contest the adoption; or
                           (2) establish paternity;
                  more than thirty (30) days after the date of service of notice of the adoption.
                  (c) A person who receives actual notice of an adoption under IC 31-19-3
                  may not:
                           (1) contest the adoption; or
                           (2) establish paternity;
                  more than thirty (30) days after the date of receiving actual notice of the
                  adoption.
                  (d) A person who is prohibited from taking action by subsection (a), (b), or
                  (c) may not challenge an adoption decree.

[13]   Ind. Code § 31-19-14-4 provides:

                  After the expiration of the period described in section 2 of this chapter,
                  neither a person whose parental rights are terminated by the entry of an
                  adoption decree nor any other person may challenge the adoption decree
                  even if:

                  (1)      notice of the adoption was not given; or
                  (2)      the adoption proceedings were in any other manner defective.[2]



       2
           Prior to July 1, 2017, Ind. Code § 31-19-14-4 provided:
                  After the expiration of the period described in section 2 of this chapter, a person whose parental rights are
                  terminated by the entry of an adoption decree may not challenge the adoption decree even if:

       Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019                                      Page 7 of 10
[14]   Inasmuch as the above operate as statutes of limitation, they are favored

       because they provide security against stale claims and promote the welfare and

       peace of society. Mathews v. Hansen, 797 N.E.2d 1168, 1171 (Ind. Ct. App.

       2003), trans. denied. When the undisputed facts establish that a claim is filed

       after the running of the applicable statute of limitations, the court must enter

       judgment accordingly. Id. Further, if the applicable statute of limitations has

       run, dismissal is appropriate. Id.


[15]   In this case, the trial court entered the decree of adoption on August 10, 2015.

       The court found that Child was born in November 2010 and had been in

       Adoptive Parents’ care since birth. J.F. filed his motion for relief from

       judgment on June 21, 2017, which was well after the deadlines set forth in Ind.

       Code § 31-19-14-2. Further, to the extent J.F. asserts that he did not have

       notice of the adoption, we note that he was served with a summons and filed an

       objection to the adoption in June 2014, that Attorney Page filed an appearance

       for J.F. in July 2014 and notified the court in May 2015 that he had informed

       J.F. of the July 20, 2015 hearing, that the June 7, 2016 CCS entry in Cause No.

       465 indicates that J.F. appeared in person and the parties notified the court of

       the Child’s adoption, and that J.F. did not file his motion for relief from

       judgment until over a year later on June 21, 2017. We also observe that Ind.




                        (1) notice of the adoption was not given to the child’s putative father; or
                        (2) the adoption proceedings were in any other manner defective.
       (Subsequently amended by Pub. L. No. 113-2017 (eff Jul. 1, 2017)).

       Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019                          Page 8 of 10
       Code § 31-19-14-4 specifically precludes J.F. from contesting the adoption

       decree even if notice of the adoption was not given. In light of the time periods

       set forth in the relevant statutes and Trial Rule 60(B) and J.F.’s knowledge of

       the adoption, we find that his motion for relief from judgment was not timely

       filed. We find no abuse of discretion. See Mathews, 797 N.E.2d at 1173

       (holding that Mathews did not comply with the deadlines in Ind. Code §§ 31-

       19-14-2 and -4 and thus was precluded from challenging the adoption decree

       and observing that, while he argued that he was not properly provided with

       notice of the intent to adopt, Ind. Code § 31-19-14-4 “specifically preclude[d]

       [him] from contesting the adoption decree, even if notice of the adoption had

       not been given,” “[p]ut another way, it is apparent that our legislature

       intentionally promulgated that an adoption decree could not be attacked on the

       basis of lack of notice after the time limitations have expired,” and “[t]o hold

       otherwise and permit Mathews to vacate the adoption decree in these

       circumstances would contravene the intended purpose and specific language of

       the applicable statute of limitations”). 3


[16]   For the foregoing reasons, we affirm the trial court.


[17]   Affirmed.




       3
         J.F. cites In re Adoption of D.C., where we held that the trial court did not have personal jurisdiction over the
       respondent due to ineffective service of process and reversed on that basis. 887 N.E.2d 950, 957 (Ind. Ct.
       App. 2008). J.F. does not dispute that he was served with a summons and filed an objection contesting the
       adoption in June 2014 and does not show the trial court lacked personal jurisdiction over him.

       Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019                                 Page 9 of 10
Altice, J., and Tavitas, J., concur.




Court of Appeals of Indiana | Opinion 19A-AD-1373 | November 26, 2019   Page 10 of 10
