                                                                                 Apr 28 2015, 6:46 am




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Jason Spindler                                             Michael R. Cochren
      Spindler Law                                               Princeton, Indiana
      Princeton, Indiana




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In The Matter of The                                       April 28, 2015
      Adoption of:                                               Court of Appeals Case No.
                                                                 26A01-1407-AD-294
      K.M.                                                       Appeal from the Gibson Circuit
                                                                 Court
      B.M.,                                                      The Honorable Jeffrey F. Meade,
      Appellant-Defendant,                                       Judge

                                                                 Cause No. 26C01-1311-AD-015
              v.

      J.R. and M.R.,
      Appellee-Plaintiff




      Friedlander, Judge.

[1]   B.C. (Mother) appeals from the trial court’s order granting M.R.’s (Stepmother)

      verified petition for adoption. Mother presents two issues for our review:




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               1. Whether Ind. Code Ann. § 31-19-9-18 (West, Westlaw current
               with all legislation of the 2015 First Regular Session of the 119th
               General Assembly effective through March 24, 2015) is
               unconstitutional because it violates her due process rights under
               the Fourteenth Amendment of the United States Constitution?
               2. Whether Mother’s efforts constituted sufficient notice of her
               objection to Stepmother’s petition for adoption such that her
               efforts justify equitable tolling of the thirty-day statutory
               timeframe in which Mother was required to file a motion to
               contest the petition for adoption?
      We affirm.

[2]   Mother and J.R. (Father) are the biological parents of K.M. (Child), born on

      May 30, 2008. Father and Stepmother married on April 14, 2012. On

      November 12, 2013, Stepmother filed a verified petition for adoption of Child.

      Mother received personal service of the adoption petition in open court on

      January 9, 2014. The notice served upon Mother advised her that if she wanted

      to contest the adoption, she needed to “file a motion to contest the adoption in

      accordance with IC 31-19-10-1[1] . . . not later than thirty (30) days after the date

      of service of this notice.” Appellant’s Appendix at 11.


[3]   On February 14, 2014, the trial court held a hearing at which all relevant parties

      were present. During the hearing, Mother, who was not represented by

      counsel, admitted that she had not filed a written motion to contest the




      1
       Ind. Code Ann. § 31-19-10-1 (West, Westlaw current with all legislation of the 2015 First Regular Session
      of the 119th General Assembly effective through March 24, 2015) provides that “[a] person contesting an
      adoption must file a motion to contest the adoption with the court not later than thirty (30) days after service
      of notice of the pending adoption”.

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      adoption. Mother explained to the court, however, that she tried to find out

      how to communicate her objection to Stepmother’s adoption of Child by

      contacting the office of her attorney in an unrelated matter, conducting her own

      internet research, visiting the Gibson County Clerk’s office in person, and

      contacting the trial court via a telephone call. The trial court nevertheless found

      that pursuant to statute, Mother’s failure to contest Stepmother’s adoption

      petition in writing within the appropriate timeframe resulted in Mother’s

      consent being irrevocably implied. After Mother questioned the trial court

      about the ramifications of the court’s decision, the trial court appointed counsel

      to review Mother’s interests. Later that same day, Mother, now represented by

      counsel, filed a motion to contest the adoption with the trial court in which

      Mother claimed to have “acted in good faith to communicate her objection

      before the expiration of [the thirty-day deadline].” Appendix at 13.


[4]   On February 24, 2014, the trial court entered an order finding that Mother had

      been properly served, but that Mother had failed, pursuant to I.C. § 31-19-10-1,

      to file a motion to contest the adoption in a timely manner. The trial court

      therefore determined that Mother’s consent to the adoption was irrevocably

      implied, and thus, pursuant to statute, Mother had lost her right to contest the

      adoption or the validity of her implied consent to the adoption. Mother filed a

      motion to correct error on February 27, 2014. The trial court held a hearing on

      Mother’s motion to correct error on May 14, 2014, after which the court denied

      Mother’s motion and upheld its February 24 order. The trial court then moved

      forward with the adoption proceedings. Following a June 2, 2014 hearing, the


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      trial court granted Stepmother’s petition to adopt Child. An order of adoption

      was subsequently signed by the trial court on June 9, 2014.

[5]   When we review a trial court’s ruling in an adoption proceeding, we will not

      disturb that ruling unless the evidence leads to only one conclusion and the trial

      court reached the opposite conclusion. In re Adoption of H.N.P.G., 878 N.E.2d

      900 (Ind. Ct. App. 2008), trans. denied. We will not reweigh the evidence, but

      rather, we will examine the evidence most favorable to the trial court’s decision

      together with all reasonable inferences to be drawn therefrom. Id. We will

      affirm if sufficient evidence exists to sustain the decision. In re Adoption of

      M.A.S., 815 N.E.2d 216 (Ind. Ct. App. 2004). The trial court’s decision is

      presumed to be correct and it is the appellant’s burden to overcome that

      presumption. Id.


                                                          1.

[6]   Mother argues that I.C. § 31-19-9-18 is an unconstitutional violation of the Due

      Process clause of the Fourteenth Amendment of the United States Constitution.

      Specifically, Mother argues that the fundamental importance of the parent-child

      relationship should necessitate a hearing in which the court can evaluate the

      worthiness of the biological parent, rather than permit a court to “default” a

      person based “upon a technicality,” i.e., a missed deadline to file a motion to

      contest. Appellant’s Brief at 9.


[7]   The Due Process Clause of the Fourteenth Amendment provides: “No State

      shall . . . deprive any person of life, liberty, or property, without due process of

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      law[.]” “Generally stated, due process requires notice, an opportunity to be

      heard, and an opportunity to confront witnesses.” Morton v. Ivacic, 898 N.E.2d

      1196, 1199 (Ind. 2008). The opportunity to be heard is a fundamental

      requirement of due process. Morton v. Ivacic, 898 N.E.2d 1196. Here, there is

      no doubt that Mother had a protectable interest. The inquiry is thus whether

      Mother was denied procedural due process.

[8]   Mother acknowledges that she received notice of Stepmother’s adoption

      petition and that she was aware of the requirement that she must file an

      objection thereto within thirty days of being given such notice. See I.C. § 31-19-

      10-1. Mother further admits that she did not file an objection within thirty

      days. I.C. § 31-19-9-18 provides, in pertinent part, that “[t]he consent of a

      person who is served with notice under IC 31-19-4.5 to adoption is irrevocably

      implied without further court action if the person . . . fails to file a motion to

      contest the adoption as required under IC 31-19-10 not later than thirty (30)

      days after service of notice under IC 31-19-4.5.”

[9]   Mother argues that I.C. § 31-19-9-18 is unconstitutional in that her consent to

      the adoption was irrevocably implied simply because she did not file an motion

      to contest the adoption within the statutory time limit and not as the result of a

      hearing at which she was given an opportunity to be heard. Mother argues that

      a hearing should be held in all adoption cases. Mother’s suggestion is really a

      request to rewrite legislation. There is nothing in the statutory language that

      requires a predicate hearing prior to a person’s consent being irrevocably

      implied. In fact, the language is clear that consent is irrevocably implied

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       “without further court action.” I.C. § 31-19-9-18. We will not read a

       requirement for a hearing into the statute. See McGee v. McGee, 998 N.E.2d 270

       (Ind. Ct. App. 2013).

[10]   The statutory framework provides that notice of an adoption petition shall be

       given and that a person receiving such notice has thirty days to file a motion to

       contest. Here, had Mother filed a motion to contest the adoption within the

       appropriate time frame, she would have been afforded the opportunity to voice

       her objection to Stepmother’s petition to adopt the Child. It was Mother’s

       failure to timely file a motion, not State action, that foreclosed her opportunity

       to oppose Stepmother’s petition for adoption. The statutory scheme afforded

       Mother procedural due process.2

                                                            2.

[11]       Mother argues that she engaged in sufficient communication with the judicial

       system such that we should not strictly apply the time limit set out in I.C. § 31-

       19-9-18. In other words, Mother argues that her efforts to communicate her

       objection to Stepmother’s petition for adoption should allow for equitable




       2
        We note that the Appellees heavily rely upon an unpublished memorandum decision in support of their
       arguments. This is contrary to Indiana Appellate Rule 65(D), which provides: “[A] memorandum decision
       shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to
       establish res judicata, collateral estoppel, or law of the case.”

       Court of Appeals of Indiana | Opinion 26A01-1407-AD-294 | April 28, 2015                        Page 6 of 10
       deviation from the statutory time limit and we should therefore set aside her

       irrevocable implied consent.3

[12]   In In re Paternity of M.G.S., 756 N.E.2d 990 (Ind. Ct. App. 2001), trans. denied,

       this court considered a similar statutory scheme but in the context of

       establishing paternity. In that case, the appellant’s consent to the adoption of

       his minor child was irrevocably implied because he failed to file a paternity

       action within thirty days of receiving notice of the proposed adoption. In its

       analysis, the court began by noting the differences between an ordinary statute

       of limitations and a nonclaim statute. The former can be waived and is subject

       to equitable tolling, but the latter is not. Id. The M.G.S. court explained the

       nature of a nonclaim statute as follows:



                [W]hile an ordinary statute of limitations may be waived and is
                subject to equitable tolling, a nonclaim statute is not. Burnett v.
                Villaneuve, 685 N.E.2d 1103, 1107 (Ind. Ct. App. 1997). ‘A
                nonclaim statute is one which creates a right of action and has
                inherent in it the denial of a right of action. It imposes a
                condition precedent—the time element which is part of the action
                itself.’ Wawrinchak v. United States Steel Corp., 148 Ind.App. 444,
                267 N.E.2d 395, 399 (1971). While nonclaim statutes limit the
                time in which a claim may be filed or an action brought, they



       3
         As noted above, Mother claims that she contacted the office of her attorney in an unrelated matter,
       searched the internet for information, visited the Gibson County Clerk’s office in person, and contacted the
       trial court via a telephone call in an effort to find out how to communicate her objection to Stepmother’s
       adoption petition.
       As an aside, we note that the trial court was not obligated to credit Mother’s testimony and in fact, in its
       questioning of Mother about her asserted attempts to find out how to communicate her objection to
       Stepmother’s adoption petition, seemed to discount the extent of some of her efforts.

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               have nothing in common and are not to be confused with general
               statutes of limitation. Donnella v. Crady, 135 Ind.App. 60, 63, 185
               N.E.2d 623, 624 (1962), trans. denied. ‘The former creates a right
               of action if commenced within the time prescribed by the statute,
               whereas the latter creates a defense to an action brought after the
               expiration of the time allowed by law for bringing of such an
               action.’ Id.

               Thus, a statute is a nonclaim statute when ‘there is clearly
               evidenced a legislative intent in [the] statute to not merely
               withhold the remedy, but to take away the right of recovery
               where a claimant fails to present his claim as provided in the
               statute.’ Rising Sun State Bank v. Fessler, 400 N.E.2d 1164, 1166
               (Ind. Ct. App. 1980). While equitable principles may extend the
               time for commencing an action under statutes of limitations,
               nonclaim statutes impose a condition precedent to the
               enforcement of a right of action and are not subject to equitable
               exceptions. See id.


       765 N.E.2d at 997. The court also noted that because adoption statutes create a

       statutory procedure unknown at common law, the statutes must be strictly

       construed in favor of the rights of natural parents. Id. (citing Adoptive Parents of

       M.L.V. v. Wilkens, 598 N.E.2d 1054, 1056 (Ind. 1992)). Courts must also

       presume that the legislature intended its language to be applied in a logical

       manner consistent with the underlying policy and goals of the statutory scheme.

       See id. at 998.


[13]   The statute at issue in M.G.S. uses, in relevant part, identical language to I.C. §

       31-19-9-18 in that the failure to do something has the effect of consent to

       adoption being “irrevocably implied without further court action.” Further, as

       was the case in M.G.S., here, a separate statute provides that a person whose

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       consent is irrevocably implied “may not contest the adoption or the validity of

       the person’s implied consent to the adoption.” See I.C. § 31-19-9-19 (West,

       Westlaw current with all legislation of the 2015 First Regular Session of the

       119th General Assembly effective through March 24, 2015).

[14]   We agree with the M.G.S. court’s analysis and similarly conclude that the plain

       language of I.C. § 31-19-9-18 indicates that it is a nonclaim statute. The

       language of the statute imposes a condition precedent to the enforcement of a

       right, i.e., the filing of a motion to contest a petition for adoption. If the

       condition precedent is not met, the right of action is lost and the adoption may

       not be challenged. The legislative intent to take away a right of recovery is clear

       from the language utilized. Further, we note that this interpretation of I.C. §

       31-19-9-18 is consistent with the objective of “avoiding unnecessary instability

       and uncertainty” in adoption proceedings. Adoptive Parents of M.L.V. v. Wilkins,

       598 N.E.2d at 1056.

[15]   Having determined that I.C. § 31-19-9-18 is a nonclaim statute, Mother is not

       entitled to equitable deviation from the thirty-day time limit and courts are not

       permitted to utilize equity to rectify an injustice even if warranted by the

       situation. Mother did not file a motion to contest Stepmother’s petition for

       adoption within thirty days after being served with notice thereof and

       consequently, Mother’s consent to the adoption was irrevocably implied.

       Mother was not thereafter permitted to contest the adoption or the validity of

       her consent and she was not entitled to equitable tolling. The trial court did not

       err in granting Stepmother’s petition for adoption of the Child.

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[16]   Judgment affirmed.

       Baker, J., and Najam, J., concur.




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