MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 05 2017, 9:33 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES Victoria L. Bailey Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Marjorie Newell Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
S.H., April 5, 2017 Appellant-Respondent, Court of Appeals Case No. 49A02-1610-JC-2403 v. Appeal from the Marion Superior Court Marion County Department of The Honorable Marilyn Moores, Child Services, et al., Judge Appellees-Petitioners The Honorable Diana Burleson, Magistrate Trial Court Cause No. 49D09-1312-JC-17336
Altice, Judge.
Case Summary Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017 Page 1 of 8 [1] This CHINS case began in December 2013, but S.H. (Father) did not appear in
the case until July 2016, shortly after the permanency plan regarding Z.B.
(Child) changed from reunification to adoption. Father claimed to have been
previously unaware of the proceedings. With the assistance of appointed
counsel, Father filed a motion for relief from judgment pursuant to Indiana
Trial Rule 60(B)(6), claiming that the CHINS adjudication as to him was void
due to ineffective service of process. He appeals the trial court’s denial of this
motion.
[2] We affirm.
Facts & Procedural History
[3] The Indiana Department of Child Services (DCS) removed Child – then age ten
– from the care of his mother (Mother) in Indianapolis on December 6, 2013,
after Child was physically abused by Mother’s boyfriend. Because Father’s
whereabouts were unknown, Child was placed with his maternal grandmother,
where he has remained.
[4] DCS filed a CHINS petition on December 10, 2013. That same day, the trial
court held a detention hearing, at which Mother appeared but not Father.1 The
court then continued the initial hearing until December 27. DCS made diligent
efforts to locate Father and, on December 16, sent service by certified mail to
1 The CHINS proceedings also involved Child’s half-brother K.B., who has a different father than Child.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017 Page 2 of 8 935 E. Dixon Street in Kokomo.2 This was the address for Father’s father,
D.H., as well as the last known address Mother had for Father. D.H. signed
the green card for the certified mailing on December 18, 2013. Additionally, a
family case manager apparently spoke with Father and informed him of a
hearing set for January 10, 2014. Father did not appear for that or any other
hearings.
[5] On February 21, 2014, Mother entered into an agreement with DCS and
admitted that Child was a CHINS. Child was so adjudicated as to Mother.
The court then set a fact-finding hearing as to Father for March 14, 2014. More
than two weeks prior to this hearing, DCS sent a letter to Father at the Dixon
Street address to inform him of the upcoming hearing.
[6] The trial court held the March 14, 2014 hearing in Father’s absence and
adjudicated Child a CHINS as to Father. The court ordered no services for
Father “until he makes himself available to the Court and demonstrates the
willingness and ability to appropriately care for the child.” Appellant’s Appendix,
Vol. III at 103.
[7] The CHINS proceedings continued for another two years without Father’s
involvement. On March 11, 2016, the trial court changed the permanency plan
for Child from reunification to adoption. Termination proceedings began on
2 This certified mailing included a letter from DCS, a summons, an advisement of rights form, and the CHINS petition.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017 Page 3 of 8 April 13, 2016, under Cause No. 49D09-1604-JT-316. Father appeared in the
termination case on May 31, 2016, at which time he was appointed a public
defender. Father filed a motion to dismiss in the termination case on June 21,
2016, arguing that he had not been properly served in the underlying CHINS
action. This motion was denied.
[8] In the meantime, Father appeared for the first time in the CHINS case at a
review hearing on July 1, 2016, and the court appointed the same public
defender that Father had for the termination case. On July 19, 2016, in the
CHINS case, Father filed a motion for relief from judgment based on T.R.
60(B)(6). He argued that the March 14, 2014 judgment entered against him was
void because the court lacked personal jurisdiction over him.
[9] The trial court held a hearing on Father’s motion on August 12, 2016. Father
testified that he lived with his father at the Dixon Street address for several
months in 2013 – two months in the spring and then again for a little over a
month in September/October. Father indicated that he then stayed with his
girlfriend for about a month before he “began to couch surf” for several months.
Transcript at 20. He explained, “I didn’t have a designated actual spot that was
in my name up until about April [2014] up in Kokomo.” Id. In April 2014, he
moved into an apartment in Kokomo and stayed there until April 2015. He
then moved to another apartment in Kokomo before moving to Indianapolis in
January 2016.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017 Page 4 of 8 [10] Father testified that between September 2013 and April 2016 his mail came to
either the Dixon Street address in Kokomo or his mother’s address in
Indianapolis. He explained, “I never did that change of mail thing”. Id. at 23.
Accordingly, he continued receiving mail at the Dixon Street address for more
than two and a half years after September 2013. Additionally, Father presented
the trial court with a current state identification card (expiring 2019) that listed
the Dixon Street address.
[11] The trial court took Father’s T.R. 60(B) motion under advisement and then
issued its decision on September 23, 2016, denying the motion. Father now
appeals.3
Discussion & Decision
[12] Father brought his motion for relief from judgment under T.R. 60(B)(6),
alleging that the March 14, 2014 judgment was void for lack of personal
jurisdiction because he had no notice of the CHINS proceedings. Specifically,
he argues that he received insufficient service of process because he did not live
with his father at the time of service.
[13] Personal jurisdiction is a question of law and, thus, our review is de novo.
Jordache White & Am. Transp., LLC v. Reimer, 61 N.E.3d 301, 305 (Ind. Ct. App.
2016), trans. denied. Although we do not defer to the trial court’s legal
3 The termination proceedings have been stayed pending the outcome of this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017 Page 5 of 8 conclusion as to whether personal jurisdiction exists, we will review its findings
of fact for clear error to the extent that personal jurisdiction turns on disputed
facts. Id.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 05 2017, 9:33 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES Victoria L. Bailey Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Marjorie Newell Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
S.H., April 5, 2017 Appellant-Respondent, Court of Appeals Case No. 49A02-1610-JC-2403 v. Appeal from the Marion Superior Court Marion County Department of The Honorable Marilyn Moores, Child Services, et al., Judge Appellees-Petitioners The Honorable Diana Burleson, Magistrate Trial Court Cause No. 49D09-1312-JC-17336
Altice, Judge.
Case Summary Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017 Page 1 of 8 [1] This CHINS case began in December 2013, but S.H. (Father) did not appear in
the case until July 2016, shortly after the permanency plan regarding Z.B.
(Child) changed from reunification to adoption. Father claimed to have been
previously unaware of the proceedings. With the assistance of appointed
counsel, Father filed a motion for relief from judgment pursuant to Indiana
Trial Rule 60(B)(6), claiming that the CHINS adjudication as to him was void
due to ineffective service of process. He appeals the trial court’s denial of this
motion.
[2] We affirm.
Facts & Procedural History
[3] The Indiana Department of Child Services (DCS) removed Child – then age ten
– from the care of his mother (Mother) in Indianapolis on December 6, 2013,
after Child was physically abused by Mother’s boyfriend. Because Father’s
whereabouts were unknown, Child was placed with his maternal grandmother,
where he has remained.
[4] DCS filed a CHINS petition on December 10, 2013. That same day, the trial
court held a detention hearing, at which Mother appeared but not Father.1 The
court then continued the initial hearing until December 27. DCS made diligent
efforts to locate Father and, on December 16, sent service by certified mail to
1 The CHINS proceedings also involved Child’s half-brother K.B., who has a different father than Child.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017 Page 2 of 8 935 E. Dixon Street in Kokomo.2 This was the address for Father’s father,
D.H., as well as the last known address Mother had for Father. D.H. signed
the green card for the certified mailing on December 18, 2013. Additionally, a
family case manager apparently spoke with Father and informed him of a
hearing set for January 10, 2014. Father did not appear for that or any other
hearings.
[5] On February 21, 2014, Mother entered into an agreement with DCS and
admitted that Child was a CHINS. Child was so adjudicated as to Mother.
The court then set a fact-finding hearing as to Father for March 14, 2014. More
than two weeks prior to this hearing, DCS sent a letter to Father at the Dixon
Street address to inform him of the upcoming hearing.
[6] The trial court held the March 14, 2014 hearing in Father’s absence and
adjudicated Child a CHINS as to Father. The court ordered no services for
Father “until he makes himself available to the Court and demonstrates the
willingness and ability to appropriately care for the child.” Appellant’s Appendix,
Vol. III at 103.
[7] The CHINS proceedings continued for another two years without Father’s
involvement. On March 11, 2016, the trial court changed the permanency plan
for Child from reunification to adoption. Termination proceedings began on
2 This certified mailing included a letter from DCS, a summons, an advisement of rights form, and the CHINS petition.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017 Page 3 of 8 April 13, 2016, under Cause No. 49D09-1604-JT-316. Father appeared in the
termination case on May 31, 2016, at which time he was appointed a public
defender. Father filed a motion to dismiss in the termination case on June 21,
2016, arguing that he had not been properly served in the underlying CHINS
action. This motion was denied.
[8] In the meantime, Father appeared for the first time in the CHINS case at a
review hearing on July 1, 2016, and the court appointed the same public
defender that Father had for the termination case. On July 19, 2016, in the
CHINS case, Father filed a motion for relief from judgment based on T.R.
60(B)(6). He argued that the March 14, 2014 judgment entered against him was
void because the court lacked personal jurisdiction over him.
[9] The trial court held a hearing on Father’s motion on August 12, 2016. Father
testified that he lived with his father at the Dixon Street address for several
months in 2013 – two months in the spring and then again for a little over a
month in September/October. Father indicated that he then stayed with his
girlfriend for about a month before he “began to couch surf” for several months.
Transcript at 20. He explained, “I didn’t have a designated actual spot that was
in my name up until about April [2014] up in Kokomo.” Id. In April 2014, he
moved into an apartment in Kokomo and stayed there until April 2015. He
then moved to another apartment in Kokomo before moving to Indianapolis in
January 2016.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017 Page 4 of 8 [10] Father testified that between September 2013 and April 2016 his mail came to
either the Dixon Street address in Kokomo or his mother’s address in
Indianapolis. He explained, “I never did that change of mail thing”. Id. at 23.
Accordingly, he continued receiving mail at the Dixon Street address for more
than two and a half years after September 2013. Additionally, Father presented
the trial court with a current state identification card (expiring 2019) that listed
the Dixon Street address.
[11] The trial court took Father’s T.R. 60(B) motion under advisement and then
issued its decision on September 23, 2016, denying the motion. Father now
appeals.3
Discussion & Decision
[12] Father brought his motion for relief from judgment under T.R. 60(B)(6),
alleging that the March 14, 2014 judgment was void for lack of personal
jurisdiction because he had no notice of the CHINS proceedings. Specifically,
he argues that he received insufficient service of process because he did not live
with his father at the time of service.
[13] Personal jurisdiction is a question of law and, thus, our review is de novo.
Jordache White & Am. Transp., LLC v. Reimer, 61 N.E.3d 301, 305 (Ind. Ct. App.
2016), trans. denied. Although we do not defer to the trial court’s legal
3 The termination proceedings have been stayed pending the outcome of this appeal.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017 Page 5 of 8 conclusion as to whether personal jurisdiction exists, we will review its findings
of fact for clear error to the extent that personal jurisdiction turns on disputed
facts. Id.
[14] It is well established that a trial court may not acquire personal jurisdiction over
a party if service of process is inadequate. See Anderson v. Wayne Post 64, Am.
Legion Corp., 4 N.E.3d 1200, 1206 (Ind. Ct. App. 2014), trans. denied. The
existence of personal jurisdiction is a constitutional requirement to rendering a
valid judgment, mandated by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. Id.
[15] Indiana Trial Rule 4.1 provides for service upon an individual. Relevant here,
T.R. 4.1(A)(1) provides:
(A) In General. Service may be made upon an individual, or an individual acting in a representative capacity, by:
(1) sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017 Page 6 of 8 Father argues that DCS did not comply with T.R. 4.1(A)(1) because the
certified mailing was not sent to “his residence”. 4
[16] Father’s testimony indicates that he was couch surfing within Kokomo at the
time his father signed for the certified mailing on December 18, 2013. 5
Although he had not stayed at the Dixon Street address in Kokomo since
sometime in October 2013, Father testified that he kept on receiving his mail at
this address well beyond 2013. Additionally, Father continued carrying a
current state identification card that listed the Dixon Street address. On these
facts, it is evident that in December 2013 Father continued to use the Dixon
Street as his residence.6
[17] Service was properly made pursuant to T.R. 4.1(A)(1), and the trial court
obtained personal jurisdiction over Father, once D.H. signed the green card on
Father’s behalf at the Dixon Street address. Accordingly, the trial court did not
err in denying Father’s motion for relief from judgment.
[18] Judgment affirmed.
4 Father does not argue that his father could not sign the green card as an individual acting in a representative capacity for Father. Accordingly, we do not address the issue. 5 Father explained that for about six months after living with his father, he did not have “a designated actual spot” in Kokomo that was in his name. Transcript at 20. 6 Father notes that the trial court did not expressly find that the Dixon Street address was Father’s residence at the time of service. In its order, the trial court made several written findings but no conclusions. The findings, however, clearly lead to the trial court’s implicit conclusion that the address was Father’s residence for purposes of T.R. 4.1(A)(1).
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017 Page 7 of 8 Kirsch, J. and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-JC-2403 | April 5, 2017 Page 8 of 8