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.”
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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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In The Matter of The Adoption of: K.M. B.M. v. J.R. and M.R.
Combined Opinion