Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                       Sep 15 2014, 6:44 am
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:                            ATTORNEYS FOR APPELLEE:

AMY KAROZOS                                        GREGORY F. ZOELLER
Greenwood, Indiana                                 Attorney General of Indiana

                                                   ROBERT J. HENKE
                                                   DAVID E. COREY
                                                   Deputies Attorney General
                                                   Indianapolis, Indiana

                                IN THE
                      COURT OF APPEALS OF INDIANA
IN THE MATTER OF THE TERMINATION OF                )
THE PARENT-CHILD RELATIONSHIP OF:                  )
                                                   )
A.C., Minor Child,                                 )
                                                   )
       and                                         )
                                                   )
R.A., Mother,                                      )
                                                   )
       Appellant-Respondent,                       )
                                                   )
                vs.                                )        No. 49A04-1402-JT-59
                                                   )
THE INDIANA DEPARTMENT OF CHILD                    )
SERVICES,                                          )
                                                   )
       Appellee-Plaintiff.                         )

                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Marilyn Moores, Judge
                          The Honorable Larry Bradley, Magistrate
                              Cause No. 49D09-1303-JT-8939

                                       September 15, 2014

                 MEMORANDUM DECISION - NOT FOR PUBLICATION
MAY, Judge

        R.A. (Mother) appeals the denial of her Trial Rule 60(B) Motion for Relief from

Judgment. We affirm.

                           FACTS AND PROCEDURAL HISTORY

        Mother and M.C. (Father)1 were the parents of A.C. (Child), born September 1, 2008.

On July 15, 2013, the trial court issued its order terminating Mother and Father’s parental

rights. On August 13, Mother contacted her trial counsel, Thomas Strodtman, and indicated

she wished to appeal the trial court’s decision. Strodtman consulted with the chief counsel of

the Marion County Public Defender’s Office’s Child in Need of Services/Termination of

Parental Rights division, Katherine Cornelius. Cornelius advised Strodtman there was still a

week to file the appeal, so Strodtman took the file to the Marion County Public Defender’s

Office’s Appellate Division the next day. Cornelius sent an email to Ruth Johnson, the head

of that division, regarding the issue.

        Sometime around September 1, Strodtman learned that Mother’s appeal had not been

filed. Cornelius acknowledged she had misinterpreted the court’s docketing system when she

told Strodtman there was one week – rather than one day – to file Mother’s appeal. Johnson

did not file a motion for a belated appeal because she believed “trying to do a belated appeal

would just be dismissed as she’s had many of them dismissed that way previously.” (Tr. at

229.)


1
 Father appealed the decision to terminate his parental rights to A.C., and we affirmed. In re A.C., 49A02-
1308-JT-671 (Ind. Ct. App. March 3, 2014).

                                                    2
       On November 22, Mother filed the 60(B) Motion, asking the trial court to re-issue its

termination order so that she could appeal it. Mother argued she was entitled to relief from

the judgment because her attorney did not file a timely appeal and because her attorney was

ineffective. On January 9, 2014, Mother filed an amended 60(B) Motion. The trial court

held a hearing and denied Mother’s 60(B) Motion on January 13, finding:

       1.     That the Motion is based on events transpiring after trial and judgment
       rendered.
       2.     That a Trial Rule 60 (B) motion is to be used to attack a judgment. The
       Court here is being asked to set aside its judgment and re-enter it in whole.
       The Court questions the validity and propriety of such an order.
       3.     A Trial Rule 60 (B) Motion is not a substitute for an appeal nor can it
       be used to revive an expired appeal.

(App. at 101.)

                              DISCUSSION AND DECISION

       T. R. 60(B) states, in relevant part:

       On motion of 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;
                                           *****
       (8) any reason justifying relief from the operation of the judgment, other than
       those reasons set forth in sub-paragraphs (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. A motion under this subdivision (B) does not
       affect the finality of a judgment or suspend its operation.

       Whether to grant a motion for relief from judgment under T.R. 60(B) is within the

discretion of the trial court, and we reverse only for abuse of that discretion. Jo. W. v. Je. W.,



                                                3
952 N.E.2d 783, 785 (Ind. Ct. App. 2011). An abuse of discretion occurs when the 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. When we review a trial court’s decision, we will

not reweigh the evidence. Id. A T.R. 60(B) motion may not serve as a substitute for an

appeal. Weinreb v. TR Developers, LLC, 943 N.E.2d 856, 863 (Ind. Ct. App. 2011), trans.

denied.

       The trial court did not abuse its discretion because Mother did not present a

“meritorious claim or defense” as required by T.R. 60(B). A meritorious claim is “a showing

that ‘will prevail until contradicted and overcome by other evidence.” Munster Comm. Hosp.

v. Bernacke, 874 N.E.2d 611, 614 (Ind. Ct. App. 2007). “A meritorious defense is one

showing, if the case was retried on the merits, a different result would be reached.” In re

Paternity of Baby Doe, 734 N.E.2d 281, 284 (Ind. Ct. App. 2000).

       Mother offered no claim or defense in her 60(B) motion, but during the hearing on

Mother’s 60(B) Motion, Mother’s counsel for the purpose of the 60(B) Motion, Barbara

Fuller questioned Mother’s trial counsel, Strodtman, about whether a meritorious defense

could have been raised as part of the appeal:

       [Fuller]:       Mr. Strodtman, Mr. Chambers asked you about, um, a
       meritorious defense. In fact, were there issues in your client’s defense that you
       raised at the trial court?
       [Strodtman]: Mmhmm, yes.
       [Fuller]:       And one of the issues, um, was mom had missed visits, is that
       correct?
       [Strodtman]: That’s correct.
       [Fuller]:       And one of the issues was that mom had, um . . .
       DCS:            Objection, leading question.
       Court:          If you’d rephrase.
                                              4
       [Fuller]:       Sure.
       [Fuller]:       Um, what was your defense regarding . . . Well, just tell the
       issues that you . . . just tell me what issues you had?
       [Strodtman]: Well, as I recall, um, it was a question of whether or not she had
       transportation available for visitation. I believe also, as I recall, she had some
       medical issues as to whether or not she was receiving the kinds of medication
       that she needed to help her in her progress to achieve what the goals were that
       were set out for her by the DCS. I think housing also was an issue. I think that
       she did not have housing and I think there might have been some issues, I
       recall, about whether or not [S]ection 8 was available for her and whether or
       not there was a, um, the so-called necessary sense of urgency in assisting her in
       finding housing from the Department of Child Services.
       [Fuller]:       Okay, so are you suggesting that the Department could have
       assisted her in finding housing?
       [Strodtman]: That would have been what I would have suggested, would have
       been an appealable issue, yes.
       [Fuller]:       And what about helping her with transportation to visits with the
       children?
       [Strodtman]: I know bus passes are often times provided if the individual
       doesn’t have transportation so, I think that would have been a possible issue
       for appeal.
       [Fuller]:       And what about, um, are there other things . . . I mean you’ve
       done these cases for fifteen years, what other accommodations are sometimes
       made for clients who don’t have transportation?
       [Strodtman]: Well, sometimes the case manager will take the client to visits,
       sometimes home based [service providers] will take the client to visits, um,
       relatives . . . I mean there’s opportunities for them to get there but in this
       particular case I don’t know that that was made available to her.
       [Fuller]:       And are those the . . . are those the issues that you raise as a
       defense in this case?
       [Strodtman]: As I recall, yes. . . . Those were the questions that we had that
       were suggested as to why the Department did not complete it’s . . . the work
       that it should have done with regards to her placement and her, as we say,
       treatment or services that should have been made available to her.

(Tr. at 215-16.) Based on Strodtman’s testimony, it would appear Mother sought to appeal

an alleged lack of services DCS offered her. However, “provision of family services is not a

requisite element of our parental rights termination statute; thus, even a complete failure to


                                               5
provide services would not serve to negate a necessary element of the termination statute and

require reversal.” In re E.E., 736 N.E.2d 791, 796 (Ind. Ct. App. 2000). In addition, “failure

to provide services does not serve as a basis on which to directly attack a termination order as

contrary to law.” In re H.L., 915 N.E.2d 145, 148 n.3 (Ind. Ct. App. 2009). Therefore, as

Mother did not assert a meritorious claim or defense in her 60(B) Motion, the trial court did

not abuse its discretion when it denied the Motion.

       Affirmed.

VAIDIK, C.J., and FRIEDLANDER, J., concur.




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