                                                                                    FILED
                                                                              Oct 31 2018, 8:31 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Darlene R. Seymour                                         Meredith L. McIntyre
      Ciyou & Dixon, P.C.                                        McIntyre & Smith
      Indianapolis, Indiana                                      Bedford, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      IN RE: THE ADOPTION OF                                     October 31, 2018
      L.G.K.                                                     Court of Appeals Case No.
                                                                 18A-AD-371
                                                                 Appeal from the Lawrence Circuit
      J.K.,                                                      Court
      Appellant-Respondent,                                      The Honorable Andrea K.
                                                                 McCord, Judge
              v.
                                                                 Trial Court Cause No.
                                                                 47C01-1702-AD-5
      G.C.,
      Appellee-Petitioner.



      Pyle, Judge.


                                        Statement of the Case
[1]   G.C. (“Putative Father”) filed a motion to set aside the adoption of the minor

      child L.G.K. (“Child”) by J.K., her maternal grandfather (“Maternal
      Court of Appeals of Indiana | Opinion 18A-AD-371 | October 31, 2018                             Page 1 of 12
      Grandfather”). Maternal Grandfather appeals, raising one issue for our review,

      which we restate as whether the trial court properly granted Putative Father’s

      motion for relief from judgment. We conclude that because Maternal

      Grandfather presented an adoption petition to the trial court in which E.K.

      (“Mother”) fraudulently claimed that she did not know the identity of Child’s

      father, the trial court did not err in granting Putative Father’s motion for relief

      from judgment and setting set aside the adoption.


[2]   We affirm.


                                                       Issue
              Whether the trial court properly granted Putative Father’s
              motion for relief from judgment.


                                                       Facts
[3]   The facts in the light most favorable to Putative Father are that Mother and

      Putative Father dated and had an intimate relationship from December 2013

      through October 2014. In December 2014, Mother told Putative Father that

      she was pregnant. Putative Father saw Mother one time during the pregnancy

      and did not provide support. Putative Father’s parents (“Paternal

      Grandparents”), however, maintained contact with Mother throughout the

      pregnancy.


[4]   Child was born on August 20, 2015. Putative Father was not present at the

      birth, but Paternal Grandparents visited Mother at the hospital shortly after

      Child was born, and Putative Father’s mother informed him that Child had

      Court of Appeals of Indiana | Opinion 18A-AD-371 | October 31, 2018        Page 2 of 12
      been born. Putative Father’s name was not listed on Child’s birth certificate,

      and Putative Father did not establish paternity or register with the Putative

      Father Registry. Putative Father testified that he and Mother took a DNA test

      using a product obtained from a drugstore, and that the test showed that he was

      Child’s biological father. Mother disputes this.


[5]   After Child was born, Mother and Putative Father lived together for

      approximately six months and acted as parents to Child. Both Putative Father

      and Paternal Grandparents established a relationship with Child. Child calls

      Putative Father “dad” and calls Paternal Grandparents “granny” and “poppy.”

      Mother and Putative Father eventually separated, but Putative Father

      continued to visit regularly with Child. Mother and Putative Father jointly

      hosted a birthday party for Child when Child turned one year old. Maternal

      Grandfather attended the party.


[6]   Mother led Putative Father to believe that he was the biological father of Child.

      At some point, Mother told Putative Father that she was going to the

      prosecutor’s office to establish child support but did not do so. She requested

      child support from Putative Father of $400.00 per month, which Putative

      Father paid at times and Mother accepted. Mother threatened to take Putative

      Father to court and deny him visitation unless he paid her child support.

      Mother and Putative Father discussed going to the Indiana Department of

      Health to have Putative Father listed on Child’s birth certificate; however, this

      was not done. At one point, Mother agreed to have Putative Father’s name

      placed on Child’s birth certificate, but she did not do so.

      Court of Appeals of Indiana | Opinion 18A-AD-371 | October 31, 2018      Page 3 of 12
[7]   On February 17, 2017, B.P., Mother’s then fiancé, filed a petition to adopt

      Child. Putative Father was not provided with notice of the petition. On May

      10, 2017, Maternal Grandfather filed a petition for adoption (“Second

      Adoption Petition”), and B.P. agreed to it. Putative Father was not provided

      with notice of the Second Adoption Petition. The Second Adoption Petition

      stated that the biological father was unknown and had not been disclosed by

      Mother to Maternal Grandfather or Maternal Grandfather’s attorney. The

      Second Adoption Petition was granted, and the decree of adoption was issued

      on May 22, 2017.


[8]   On June 19, 2017, under a separate cause number, Putative Father filed a

      petition to establish paternity and for orders relating to custody, visitation, and

      support. Putative Father continued to have contact with Child after the

      adoption decree was issued, though Putative Father did not learn of Child’s

      adoption until Mother moved to dismiss his paternity action. Putative Father

      registered with the Putative Father Registry in August 2017.


[9]   On August 4, 2017, Putative Father filed a motion to set aside the adoption,

      alleging that Mother and Maternal Grandfather defrauded him by “allowing

      him to have a regular visitation schedule with this child, by taking his regular

      child support payments, and allowing him to be this child’s father, while behind

      the scenes, [Mother] was planning to have this child adopted by first her

      fianc[é], and then by her father.” (App. Vol. 2 at 9). Maternal Grandfather




      Court of Appeals of Indiana | Opinion 18A-AD-371 | October 31, 2018        Page 4 of 12
       filed a motion to dismiss Putative Father’s motion. Putative Father responded
                                                                             1
       and, additionally, moved for relief from judgment.


[10]   The trial court held an evidentiary hearing on November 28, 2017. On January

       25, 2018, the trial court granted Putative Father’s motion to set aside the
                      2
       adoption. The court issued a written order, determining (among other things)

       that:


                  [Mother] held [Putative Father] out to be the [Child’s] Father to
                  [Putative Father], his family, her family and to the child up to
                  and including the summer of 2017. The photos and text
                  messages entered into evidence establish that [Putative Father]
                  and his family have a loving relationship with [Child].


                  Based on the Court’s observation of [Mother] and the evidence
                  presented, the Court does not find her to be credible.


       (App. Vol. 2 at 10). The trial court concluded (in relevant part) that:


                  The child’s rights as well as [Putative Father’s] rights are not well
                  served by denying notice and a hearing to a father whose identity
                  and location were known by the Petitioner. Further, by not
                  setting aside this order, the child’s right to an involved and loving
                  parent is compromised. . . . [Putative Father] has demonstrated
                  that he established a substantial relationship with the child and
                  was not given the right to contest the adoption or proceed with
                  his Paternity matter, and/or the Petitioner procured a fraud upon



       1
           Father’s motion for relief from judgment was not provided in the record on appeal.
       2
         The trial court also denied Mother’s motion to dismiss the paternity action, although it is unclear when the
       trial court consolidated the paternity action with the adoption matter.

       Court of Appeals of Indiana | Opinion 18A-AD-371 | October 31, 2018                               Page 5 of 12
               the Court by stating in his Petition that “‘The biological father is
               unknown and has not been disclosed to the petitioner or
               petitioner’s attorney by the Mother’” when it was clear to the
               Court that the Petitioner knew that [Putative Father] had been
               acting as and was believed to be the child’s Father, therefore
               invoking the Court to set the Adoption aside under Indiana Trial
               Rule 12(b)(6) [sic]. Further, that [Putative Father] was
               fraudulently induced, through material misrepresentations by
               [Mother], to not exercise his obligations or rights to take legal
               action to establish his rights legally. The Court further finds that
               [Putative Father] had standing to join in the Adoption because of
               the fraudulent actions of the Petitioner and to protect his due
               process rights allowing him to be equally protected as a parent
               and/or to proceed with his right [to] establish legally whether or
               not he is the Father. Further, he is furthering the rights of the
               child to determine whether she will be able to continue with their
               relationship and a relationship with her possible half-sister.
               [Putative Father] should have been notified of the filing of any
               Petition for Adoption of the minor child, [L.G.K.].


       (App. Vol. 2 at 18-19).


                                                   Discussion
[11]   The issue before us is whether the trial court properly granted Putative Father’s

       motion for relief from judgment. Maternal Grandfather argues that the trial

       court erred in granting the motion for relief from judgment, and that the trial

       court should have upheld the adoption decree and dismissed Putative Father’s

       paternity action. According to Putative Father, the trial court reached the

       correct result because Mother and Maternal Grandfather perpetrated fraud on

       the court by misrepresenting their knowledge of the existence of Putative Father

       as Child’s biological father. In his reply brief, Maternal Grandfather maintains

       Court of Appeals of Indiana | Opinion 18A-AD-371 | October 31, 2018        Page 6 of 12
       that “[Putative] Father cannot cry “‘fraud’”, as Mother is not to blame for

       [Putative Father’s] own inaction in failing to register” with the Putative Father
                                                                           3
       Registry. (Maternal Grandfather’s Reply Br. 9).


[12]   The trial court’s decision whether to set aside a judgment is given substantial

       deference on appeal, and we will reverse only if the trial court abused its

       discretion. In re Adoption of L.C.E., 940 N.E.2d 1224, 1226 (Ind. Ct. App. 2011).

       An abuse of discretion occurs where the trial court’s judgment is clearly against

       the logic and effect of the facts and inferences supporting the judgment for

       relief. Id. In reviewing the trial court’s decision, we will not reweigh the

       evidence or substitute our judgment for that of the trial court. Id.


[13]   Trial Rule 60 motions address the equitable grounds justifying relief from the

       legal finality of the final judgment. Blichert v. Brososky, 436 N.E.2d 1165, 1167

       (Ind. Ct. App. 1982). Indiana Trial Rule 60(B)(3) provides that a court may

       relieve a party from a final judgment based on fraud, misrepresentation, or

       other misconduct of an adverse party. The decision of whether to grant or deny

       such a motion is left to the equitable discretion of the trial court. Stonger v.

       Sorrell, 776 N.E.2d 353, 358 (Ind. 2002); Levin v. Levin, 645 N.E.2d 601, 604

       (Ind. 1994). We will not reverse a grant or denial of a motion for relief from

       judgment in the absence of an abuse of discretion. Stonger, 776 N.E.2d at 358;




       3
         The parties also raise arguments of constitutional due process, relating to a putative father registering (or
       failing to register) with the Putative Father Registry, and interpretation of the adoption statutes. Finding the
       issue of fraud dispositive, we decline to address those arguments.

       Court of Appeals of Indiana | Opinion 18A-AD-371 | October 31, 2018                                 Page 7 of 12
       see also Beike v. Beike, 805 N.E.2d 1265, 1267 (Ind. Ct. App. 2004). The burden

       is on the movant to demonstrate that relief is both necessary and just. Levin,

       645 N.E.2d at 604.


[14]   When, as in this case, the trial court has made findings of fact and conclusions

       thereon, we apply a two-tiered standard of review: “we must first determine

       whether the evidence supports the findings and second, whether the findings

       support the judgment.” In re Adoption of T.W., 859 N.E.2d 1215, 1217 (Ind. Ct.

       App. 2006); see also Ind. Trial Rule 52(A) (providing that where the trial court

       has made findings of fact and conclusions of law, “the court on appeal shall not

       set aside the findings or judgment unless clearly erroneous, and due regard shall

       be given to the opportunity of the trial court to judge the credibility of the

       witnesses.”). Factual findings “are clearly erroneous if the record lacks any

       evidence or reasonable inferences to support them [and] . . . [a] judgment is

       clearly erroneous when it is unsupported by the findings of fact and the

       conclusions relying on those findings.” T.W., 859 N.E.2d at 1217.


[15]   To assert a claim of fraud on the court, the party must establish that an

       unconscionable plan or scheme was used to improperly influence the court’s

       decision and that such acts prevented the losing party from fully and fairly

       presenting its case or defense. Stonger, 776 N.E.2d at 357. The party also must

       show that he has a “meritorious claim or defense.” Outback Steakhouse of

       Florida, Inc. v. Markley, 856 N.E.2d 65, 73 (Ind. 2006). This meritorious claim

       or defense requirement merely requires a prima-facie showing, that is, “‘a

       showing that will prevail until contradicted and overcome by other

       Court of Appeals of Indiana | Opinion 18A-AD-371 | October 31, 2018         Page 8 of 12
       evidence.’” Id. This requires a showing that “‘vacating the judgment will not

       be an empty exercise.’” Id.


[16]   Fraud on the court has been narrowly applied and is limited to the most

       egregious of circumstances involving the courts. Stonger, 776 N.E.2d at

       357. To prove fraud on the court, it is not enough to show a possibility that the

       trial court was misled. Id. at 358. Instead, there must be a showing that the

       trial court’s decision was actually influenced. Id.


[17]   Here, Putative Father alleges that Mother “misrepresented to [Putative Father]

       the facts regarding his relationship with [Child], and [Maternal Grandfather]

       and Mother misrepresented their knowledge about the existence of [Putative

       Father] as [Child’s] biological father[, and that] [a]s a result of these

       misrepresentations, [Putative Father] failed to file with the putative father

       registry[,] and the trial court . . . granted [Maternal Grandfather’s] adoption

       petition.” (Putative Father’s Br. 11). This allegation thus alleges an

       unconscionable plan or scheme was used to improperly influence the court’s

       decision and that such acts prevented Putative Father from fairly presenting his

       case. See Stonger, 776 N.E.2d at 357. We agree.


[18]   Putative Father grasped the opportunity to undertake his parental

       responsibilities toward Child by exercising regular visitation with Child, paying

       child support to Mother, and attending Child’s doctor’s appointments. At the

       same time, Mother was holding Putative Father out as Child’s father, accepting

       child support payments, and permitting Putative Father to exercise visitation.


       Court of Appeals of Indiana | Opinion 18A-AD-371 | October 31, 2018         Page 9 of 12
       This continued even after Maternal Grandfather filed the adoption petition.

       Mother allowed Putative Father to keep Child over a weekend in June 2017,

       after the adoption petition was granted and before Putative Father was made

       aware of the adoption. Mother knew that Child called Putative Father “dad,”

       and Mother, Putative Father, and Child had all lived together for a period of

       time. In addition, Putative Father was led to believe, and indeed believed, he

       was Child’s father. Nevertheless, Maternal Grandfather fraudulently presented

       an adoption petition to the trial court claiming that Mother did not know the

       identity of Child’s father.


[19]   Based on the language of the trial court’s written order granting (among other

       things) relief from judgment, it appears that the court was strongly of the view

       that its granting of the adoption petition was significantly influenced by

       Maternal Grandfather’s claim that Mother did not know the identity of the

       Child’s father. The trial court specifically found that “[b]ased on the Court’s

       observation of [Mother] and the evidence presented [at the evidentiary hearing],

       the Court does not find her to be credible.” (App. Vol. 2 at 10). We will not

       second-guess the trial court’s finding.


[20]   We are aware and acknowledge that INDIANA CODE § 31-19-5-18 governs the

       waiver of notice rights of unregistered putative fathers, providing that, “A

       putative father who fails to register within the period specified by section 12 of

       this chapter waives notice of an adoption proceeding. The putative father’s

       waiver under this section constitutes an irrevocably implied consent to the

       child’s adoption.” I.C. § 31-19-5-18. INDIANA CODE § 31-19-5-12(a) sets forth

       Court of Appeals of Indiana | Opinion 18A-AD-371 | October 31, 2018      Page 10 of 12
       the time period in which a putative father must register, that is, for our

       purposes, within thirty days of the child’s birth or by the date on which the

       petition to adopt the child is filed, whichever is later. We also acknowledge

       that statutes and established caselaw provide that “a putative father whose

       consent has been implied may not challenge the adoption or establish

       paternity.” See, e.g., In re Paternity of Baby Doe, 734 N.E.2d 281, 285 (Ind. Ct.

       App. 2000); In re Adoption of J.D.C., 751 N.E.2d 747, 750 (Ind. Ct. App. 2001);

       In re Adoption of K.G.B., 18 N.E.3d 292, 297 (Ind. Ct. App. 2014); In re Adoption

       and Paternity of K.A.W., 99 N.E.3d 724 (Ind. Ct. App. 2018); I.C. §§ 31-19-9-13,

       –14.


[21]   Here, a verified petition for adoption was filed by Maternal Grandfather that

       stated that Mother did not disclose the name of Child’s putative father. See I.C.
                         4
       § 31-19-5-1. However, evidence was presented at the evidentiary hearing that

       both Maternal Grandfather and Mother knew that Putative Father was Child’s

       father, and that Mother chose not to disclose this. Regardless of Putative

       Father’s statutory waiver of notice of the adoption proceeding for failure to

       register with the Putative Father Registry, the fraud perpetrated by Mother and

       Maternal Grandfather precluded the trial court from having an opportunity to



       4
           The statutory authority governing the Putative Father Registry

                applies to a putative father whenever (1) an adoption under IC 31-19-2 has been or may be filed
                regarding a child who may have been conceived by the putative father; and (2) on or before the
                date the child’s mother executes a consent to the child’s adoption, the child’s mother has not
                disclosed the name or address, or both, of the putative father to the attorney or agency that is
                arranging the child’s adoption.
       I.C. § 31-19-5-1(a).

       Court of Appeals of Indiana | Opinion 18A-AD-371 | October 31, 2018                               Page 11 of 12
       consider Putative Father’s relationship, as well as his family’s relationship, with

       Child which compromises the best-interests aspect of the adoption decision-
                                                                        5
       making process. See I.C. § 31-19-11-1(a)(1). Under this set of facts, and in

       support of the trial court’s belief that Mother lacked credibility at the

       evidentiary hearing, we conclude that Putative Father was entitled to equitable

       relief, notwithstanding Putative Father’s failure to register with the Putative

       Father Registry.


[22]   Based on the foregoing, we find that Mother and Maternal Grandfather

       engaged in an unconscionable plan or scheme to improperly influence the

       court’s decision regarding the adoption, that such acts ultimately prevented

       Putative Father from fairly challenging the adoption of Child, and that Putative

       Father established a prima-facie showing of a meritorious defense. Therefore,

       we conclude that the trial court properly granted Putative Father’s motion for

       relief from judgment and did not abuse its discretion in doing so.


[23]   Affirmed.


       Najam, J., and Crone, J., concur.




       5
         INDIANA CODE § 31-19-11-1(a)(1) reads as follows: “(a) Whenever the court has heard the evidence and
       finds that: (1) the adoption requested is in the best interest of the child; . . . the court shall grant the petition
       for adoption and enter an adoption decree.



       Court of Appeals of Indiana | Opinion 18A-AD-371 | October 31, 2018                                     Page 12 of 12
