In Re JH

898 N.E.2d 1265, 2009 WL 57519
CourtIndiana Court of Appeals
DecidedJanuary 12, 2009
Docket02A05-0807-JV-410
StatusPublished

This text of 898 N.E.2d 1265 (In Re JH) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re JH, 898 N.E.2d 1265, 2009 WL 57519 (Ind. Ct. App. 2009).

Opinion

898 N.E.2d 1265 (2009)

In the Matter of the Termination of the Parent-Child Relationship of J.H., Minor Child, and her Mother, Nikki Mast-Hough,[1] and her Father, Anthony Hough,
Anthony Hough, Appellant/Respondent,
v.
Allen County Department of Child Services, Appellee/Petitioner.

No. 02A05-0807-JV-410.

Court of Appeals of Indiana.

January 12, 2009.

*1267 Thomas C. Allen, Fort Wayne, IN, Attorney for Appellant.

Sherry Hartzler, Indiana Department of Child Services, Fort Wayne, IN, Attorney for Appellee.

OPINION

BRADFORD, Judge.

Appellant-Respondent Anthony Hough ("Father") appeals the juvenile court's termination of his parental rights to his daughter, J.H. Upon appeal, Father claims that he did not receive proper notice of the proceedings and that the juvenile court therefore lacked jurisdiction to terminate his parental rights. We affirm.

FACTS AND PROCEDURAL HISTORY

J.H., who was born on November 1, 2003, was adjudicated to be a Child in Need of Services ("CHINS") in Allen Superior Court on July 18, 2006. Following a March 22, 2007 permanency hearing at which Father was present, on April 13, 2007, the juvenile court found that termination of parental rights was in J.H.'s best interest, and it adopted a permanency plan which included terminating parental rights. On June 21, 2007, the Allen County Department of Child Services ("ACDCS") filed a petition seeking the involuntary termination of Father's parental rights. On August 30, 2007, Father appeared at a review hearing regarding the CHINS adjudication. That same day, Father was served with a summons regarding the termination proceedings. The summons, which was attached to a copy of the termination petition, commanded Father *1268 to appear at the Allen Superior Court, Family Relations Division, Room 208, in Fort Wayne on October 15, 2007, at 1:30 p.m. for a termination trial and any further proceedings. Father signed the summons, acknowledging receipt of service.

At the October 15 termination hearing, Father was present but objected to the court's jurisdiction on the grounds that he had not received proper service of process. The trial court denied his objection based upon Indiana Code section 31-32-9-1(d) (2006), which provides that service of summons is not required if the person entitled to be served attends the hearing. Following the termination hearing, which continued on October 19 and December 4, 2007, the juvenile court entered an order on March 4, 2008, terminating Father's parental rights. This appeal follows.

DISCUSSION AND DECISION

Upon appeal, Father challenges the juvenile court's personal jurisdiction by claiming that the summons did not follow certain specifications of Trial Rule 4(C). The ACDCS responds by claiming that it was not required to comply with Trial Rule 4(C) and that the summons issued was reasonably calculated to inform Father of the termination proceedings.

I. Standard of Review

Personal jurisdiction is a question of law. LinkAmerica Corp. v. Albert, 857 N.E.2d 961, 965 (Ind.2006) (citing Anthem Ins. Co. v. Tenet Healthcare Corp., 730 N.E.2d 1227, 1237 (Ind.2000), superseded by rule on other grounds). As with other questions of law, a determination of the existence of personal jurisdiction is entitled to de novo review by appellate courts. Id. This court does not defer to the trial court's legal conclusion as to whether personal jurisdiction exists. Id. However, personal jurisdiction turns on facts, and findings of fact by the trial court are reviewed for clear error. Id. Clear error exists where the record does not offer facts or inferences to support the trial court's findings or conclusions of law. Rogers v. Rogers, 876 N.E.2d 1121, 1126 (Ind.Ct.App.2007), trans. denied.

II. Applicable Law

Father claims that the summons was defective and deprived the trial court of personal jurisdiction over him. Ineffective service of process prohibits a trial court from having personal jurisdiction over a respondent. Volunteers of Am. v. Premier Auto Acceptance Corp., 755 N.E.2d 656, 659 (Ind.Ct.App.2001). A judgment rendered without personal jurisdiction over a defendant violates due process and is void. See Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind.1998). A void judgment is a complete nullity and may be attacked at any time. See id. at 1154, 1156.

The question as to whether process was sufficient to permit a juvenile court to exercise jurisdiction over a party involves two issues: whether there was compliance with the Indiana Trial Rules regarding service, and whether such attempts at service comported with the Due Process Clause of the Fourteenth Amendment. See In re D.C., 887 N.E.2d 950, 955-56 (Ind.Ct.App.2008) (citing Munster v. Groce, 829 N.E.2d 52, 58 (Ind.Ct.App. 2005)).

III. Analysis

A. Compliance with Trial Rules

A proceeding to terminate parental rights is basically an in rem proceeding and is governed by the Indiana Rules of Procedure. In re A.C., 770 N.E.2d 947, 949 (Ind.Ct.App.2002). Indiana Trial Rule 4(C) directs that a proper summons form shall contain the following information:

*1269 (1) The name and address of the person on whom the service is to be effected;
(2) The name, street address, and telephone number of the court and the cause number assigned to the case;
(3) The title of the case as shown by the complaint, but, if there are multiple parties, the title may be shortened to include only the first named plaintiff and defendant with an appropriate indication that there are additional parties;
(4) The name, address, and telephone number of the attorney for the person seeking service;
(5) The time within which these rules require the person being served to respond, and a clear statement that in case of his failure to do so, judgment by default may be rendered against him for the relief demanded in the complaint.

Father claims that the summons in his case was defective because it did not comport with Trial Rule 4(C).

1. Applicability of Trial Rule 4

The ACDCS responds by arguing, pursuant to A.C., that it was not required to follow Trial Rule 4. ACDCS further argues, pursuant to Indiana Code sections 31-32-9-1(d) and 31-35-2-2 (2006), that because Father was present at the termination hearing, he was not entitled to a summons.

a. Precedential Value of A.C.

We first address ACDCS's claim based upon A.C. that it was not required to follow Trial Rule 4. In A.C. this court determined that the petitioner had properly followed the requirements of Trial Rule 4 in serving the respondent with process by publication. 770 N.E.2d at 949.

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Related

Mullane v. Central Hanover Bank & Trust Co.
339 U.S. 306 (Supreme Court, 1950)
LinkAmerica Corp. v. Albert
857 N.E.2d 961 (Indiana Supreme Court, 2006)
Anthem Ins. Companies v. Tenet Healthcare Corp.
730 N.E.2d 1227 (Indiana Supreme Court, 2000)
Stidham v. Whelchel
698 N.E.2d 1152 (Indiana Supreme Court, 1998)
McEwen v. State
695 N.E.2d 79 (Indiana Supreme Court, 1998)
Volunteers of America v. Premier Auto Acceptance Corp.
755 N.E.2d 656 (Indiana Court of Appeals, 2001)
Bowyer v. Indiana Department of Natural Resources
798 N.E.2d 912 (Indiana Court of Appeals, 2003)
Rogers v. Rogers
876 N.E.2d 1121 (Indiana Court of Appeals, 2007)
Jackson v. City of Jeffersonville
771 N.E.2d 703 (Indiana Court of Appeals, 2002)
Munster v. Groce
829 N.E.2d 52 (Indiana Court of Appeals, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
898 N.E.2d 1265, 2009 WL 57519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jh-indctapp-2009.