                                                                             FILED
                                                                        May 26 2016, 9:18 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEE
Donald W. Francis, Jr.                                    Gregory F. Zoeller
Michelle B. Domer                                         Attorney General of Indiana
Francis Berry & Domer
                                                          Robert J. Henke
Bloomington, Indiana                                      David E. Corey
                                                          Deputy Attorneys General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of                                     May 26, 2016
W.M. (Minor Child)                                        Court of Appeals Case No.
                                                          28A01-1601-AD-56
D.M. and J.M.,
                                                          Appeal from the Greene Circuit
Appellants-Respondents,                                   Court
        v.                                                The Honorable Erik Allen, Judge
                                                          Trial Court Cause No.
F.F., M.F., and The Indiana                               28C01-1508-AD-25
Department of Child Services,
Appellee-Petitioner




Baker, Judge.




Court of Appeals of Indiana | Opinion 28A01-1601-AD-56 | May 26, 2016                            Page 1 of 8
[1]   J.M. (Grandfather) and D.M. (Grandmother) (collectively, Grandparents)

      appeal the order of the Greene Circuit Court transferring their adoption petition

      to the Monroe Circuit Court. Finding no error, we affirm.


                                                        Facts
[2]   W.M. (Child) was born on December 14, 2013, and was shortly thereafter

      alleged to be a child in need of services (CHINS) in a case filed in Monroe

      Circuit Court by the Indiana Department of Child Services (DCS). 1 Child was

      placed with Grandparents, who live in Greene County and were caring for

      Child’s older sister. Child was adjudicated to be a CHINS on February 3, 2014.


[3]   In December 2013, when DCS was determining where to place Child,

      Grandfather tested positive for marijuana use. DCS went ahead with the

      placement, but he and Grandmother agreed with DCS “to be drug tested at

      least once per month. If there is a positive screen in the future, [Child] will

      immediately be removed from their home.” Appellee’s App. p. 41.


[4]   In March 2015, DCS received a report indicating that Grandparents were using

      methamphetamine. A drug screen showed that Grandmother was using

      methamphetamine, but Grandfather’s screen was negative. As a result of

      Grandmother’s positive screen, Child was removed from Grandparent’s home,

      and the Monroe Circuit Court authorized placement of Child with her Aunt




      1
          The record before us does not include the circumstances surrounding the CHINS case.


      Court of Appeals of Indiana | Opinion 28A01-1601-AD-56 | May 26, 2016                     Page 2 of 8
      M.F. and Uncle F.F. (Aunt and Uncle), who were caring for two other siblings

      of Child.


[5]   On June 19, 2015, Grandparents petitioned the Monroe Circuit Court, seeking

      intervention in the CHINS case and requesting that Child be returned to their

      care. Before the Monroe Circuit Court had the opportunity to rule on this

      motion, Grandparents filed an adoption petition regarding Child in Greene

      Circuit Court. The Greene Circuit Court set a hearing for September 28, 2015.

      Before this hearing, however, on September 21, 2015, the Monroe Circuit Court

      granted Grandparents’ motion to intervene in the CHINS case. On September

      24, 2015, Aunt and Uncle filed an adoption petition in the Monroe Circuit

      Court. Grandparents filed a motion to dismiss Aunt and Uncle’s petition

      pursuant to Indiana Trial Rule 12(B)(8), alleging that the same action was

      pending in another Indiana court, but that motion was denied.


[6]   On November 4, 2015, the Greene Circuit Court held a hearing to determine

      whether DCS would consent to the Grandparents’ proposed adoption. On

      December 3, 2015, Aunt and Uncle sought to intervene in the Greene County

      adoption case, and moved to have the case transferred to the Monroe Circuit

      Court. DCS filed a motion requesting the same on December 9, 2015.


[7]   The following day, the Greene Circuit Court issued an order granting Aunt and

      Uncle’s motion, and transferred the case to the Monroe Circuit Court. Its order

      explained that it had consulted with the Monroe Circuit Court. Because there

      were multiple cases relating to Child in Monroe County—including the CHINS


      Court of Appeals of Indiana | Opinion 28A01-1601-AD-56 | May 26, 2016   Page 3 of 8
       case, a termination of parental rights case, and the Aunt and Uncle’s adoption

       case—both Judges concluded that the Monroe Circuit Court would be the

       preferred venue. Grandparents now appeal.


                                     Discussion and Decision
[8]    “A trial court’s order on a motion to transfer venue under T.R. 75(A) is an

       interlocutory order and is reviewed under an abuse of discretion standard.”

       Pratt v. Pierce, 713 N.E.2d 312, 315 (Ind. Ct. App. 1999). An abuse of discretion

       occurs if the trial court’s decision is clearly against the logic and effect of the

       facts and circumstances before the court, or if the trial court has misinterpreted

       the law. Id.


[9]    Grandparents have one argument on appeal: “[e]xclusive jurisdiction over the

       adoption proceeding pertaining to [Child] lies with the Greene Circuit Court.”

       Appellant’s Br. p. 3. They argue that, because they filed an adoption petition in

       Greene County before Aunt and Uncle filed an adoption petition in Monroe

       County, it was impermissible for the Greene Circuit Court to transfer the case

       to the Monroe Circuit Court.


[10]   We must be mindful of our Supreme Court’s advice “that the term ‘jurisdiction’

       should not be used too broadly.” In re Custody of M.B., No. 65S04–1604–MI–

       00180, 2016 WL 1436553, at *2 (Ind. Apr. 12, 2016). There are two types of

       jurisdiction: “subjection matter jurisdiction is the power to hear and determine

       cases of the general class to which any particular proceeding belongs”; and

       “personal jurisdiction requires that appropriate process be effected over the

       Court of Appeals of Indiana | Opinion 28A01-1601-AD-56 | May 26, 2016         Page 4 of 8
       parties.” K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006). Indiana courts have

       such jurisdiction as is granted to them by the State constitution and statutes.

       Benham v. State, 637 N.E.2d 133, 136 (Ind. 1994).


[11]   Indiana Code section 31-19-2-2 lists where adoption petitions may be filed:

               (a) A resident of Indiana who seeks to adopt a child less than
               eighteen (18) years of age may, by attorney of record, file a
               petition for adoption with the clerk of the court having probate
               jurisdiction in the county in which:


                        (1) the petitioner for adoption resides;


                        (2) a licensed child placing agency or government agency
                        having custody of the child is located; or


                        (3) the child resides.


               (b) The county in which the adoption may be filed is a matter of
               venue and not jurisdiction.


       It is clear that Grandparents were allowed to file their adoption petition in

       Greene County, under Indiana Code section 31-19-2-2(a)(1), as that is their

       county of residence. But Aunt and Uncle were also allowed to file their

       adoption petition in Monroe County, under Indiana Code section 31-19-2-

       2(a)(2), as that is where Child’s wardship was located. Thus, both courts have

       “jurisdiction,” as either can hear adoption cases. The question becomes

       whether, as Grandparents contend, the Monroe Circuit Court was divested of



       Court of Appeals of Indiana | Opinion 28A01-1601-AD-56 | May 26, 2016       Page 5 of 8
       jurisdiction when Grandparents filed their adoption petition in the Greene

       Circuit Court.


[12]   Grandparents’ argument that the Greene Circuit Court had “exclusive

       jurisdiction” is foreclosed by our decision in In re Adoption of Z.D., 878 N.E.2d

       495 (Ind. Ct. App. 2007). There, a grandparent filed an adoption petition, and

       foster parents subsequently filed an adoption petition in another county. Id. at

       496. The grandparent “argue[d] that the Benton Circuit Court had exclusive

       jurisdiction over Z.D.’s adoption because her petition was filed before the foster

       parent’s petition in Tippecanoe Circuit Court.” Id. We decided, however, that

       “we cannot conclude that the Tippecanoe Circuit Court was required to divest

       itself of jurisdiction . . . because [grandparent’s] petition to adopt Z.D. was

       pending in Benton County.” Id. at 497.


[13]   Since the first adoption petition did not create “exclusive jurisdiction,” we went

       on to decide the case based on preferred venue:

               Indiana Trial Rule 75(A) contains ten subsections, each setting
               forth criteria establishing “preferred” venue. None of these
               subsections precisely addresses the circumstances presented in
               this case. Yet, pursuant to Rule 75(A)(1), preferred venue lies in
               “the county where the greater percentage of individual
               defendants included in the complaint resides[.]” Although there
               are no “defendants” named in a petition for adoption, both Z.D.
               and the [Tippecanoe County Department of Family and
               Children] are located in Tippecanoe County. Moreover, the
               CHINS and termination of parental rights proceedings occurred
               in Tippecanoe Superior Court. All legal proceedings concerning
               the care and custody of Z.D. have taken place in Tippecanoe
               County.
       Court of Appeals of Indiana | Opinion 28A01-1601-AD-56 | May 26, 2016        Page 6 of 8
       Id.


[14]   For precisely the same rationale, the Monroe Circuit Court was the preferred

       venue in this case. All of the following are pending in that court: (i) Child’s

       CHINS case; (ii) a termination of parental rights case; and (iii) Aunt and

       Uncle’s adoption petition. Moreover, Grandparents successfully intervened in

       the CHINS case before the Monroe Circuit Court.


[15]   Grandparents’ attempt to distinguish Z.D. by pointing out what we described as

       “the unique circumstances of [that] case . . . .” Id. We were referring to the fact

       that the grandparent had never received notice that the foster parents had filed

       an adoption petition in a different county, and she therefore did not have an

       opportunity to attend or contest the proceedings. Id. The Tippecanoe Circuit

       Court granted the foster parents’ adoption petition, which the grandparent only

       discovered when she showed up to a Benton Circuit Court hearing, where the

       Tippecanoe County Department of Family and Children told her that the child

       had already been adopted. Id. at 496.


[16]   Therefore, when deciding to affirm, part of our analysis stressed “the State’s

       ‘strong interest in providing [a] stable home [ ]’ for Z.D.” Id. at 497 (quoting In

       re Adoption of J.B.S., 843 N.E.2d 975, 977 (Ind. Ct. App. 2006)). Grandparents

       argue that this concern is not present in this case, as Child has not yet been

       adopted by either contender.


[17]   We believe that these distinctions counsel just as strongly in favor of affirming

       in this case. Unlike the grandparent in Z.D., Grandparents have notice that

       Court of Appeals of Indiana | Opinion 28A01-1601-AD-56 | May 26, 2016      Page 7 of 8
       there is a competing adoption petition. Further, Grandparents have

       successfully intervened in the Monroe County CHINS case, and their adoption

       petition has been transferred to Monroe Circuit Court where they will be able to

       argue that their petition should be granted and that Aunt and Uncle’s petition

       should be denied.


[18]   In essence, Grandparents are asking us to reverse the trial court for proactively

       and correctly solving the issue that arose in the Z.D. case.2 We decline to do so.


[19]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       2
        We would also like to take the opportunity to thank and commend the Greene Circuit Court and the
       Monroe Circuit Court for communicating and working together to promote judicial economy and efficiency.

       Court of Appeals of Indiana | Opinion 28A01-1601-AD-56 | May 26, 2016                        Page 8 of 8
