H B v. B J

FILED
Sep 28 2023, 9:21 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANTS
C. Matthew Zentz
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In re the Adoption of E.S.J. September 28, 2023
(Minor Child) Court of Appeals Case No.
23A-AD-1161
H.M.B. and J.T.J.,
Interlocutory Appeal from the
Appellants-Petitioners, Marion Superior Court
v. The Honorable Ryan Gardner,
Judge
B.J., Trial Court Cause No.
49D10-2304-AD-16045
Appellee-Respondent

Opinion by Judge Crone
Judges Brown and Felix concur.

Crone, Judge.

Case Summary
[1] H.M.B. (Mother) and J.T.J. (Stepfather) (collectively Appellants) bring this

interlocutory appeal of the trial court’s order granting the petition to transfer

Court of Appeals of Indiana | Opinion 23A-AD-1161 | September 28, 2023 Page 1 of 7
 venue filed by B.J. (Father). Appellants argue that the trial court abused its

discretion in granting transfer. We agree and therefore reverse.

Facts and Procedural History
[2] On April 19, 2023, Appellants filed a verified petition for Stepfather’s adoption

of E.S.J. (Child), a minor under the age of eighteen, in Marion County, where

Appellants’ attorney maintains an office. Appellants and Child reside in

Johnson County. In their adoption petition, Appellants alleged that Father’s

consent to the adoption was not necessary under Indiana Code Section 31-19-9-

8(a) because Father had abandoned or deserted Child for at least six months

immediately preceding the date of the filing of the adoption petition and

because Father had, without just cause, failed to have any meaningful

communication with and provide support for Child for more than one year.

[3] On April 26, 2023, Father filed a verified objection to adoption. On May 10,

2023, Father filed a petition to transfer venue to Johnson County. Father

alleged that Appellants filed a petition for Stepfather’s adoption of Child in

Johnson County on October 11, 2021, that the trial court ruled Father’s consent

was necessary, and that the Court of Appeals affirmed the trial court’s ruling on

December 1, 2022. 1 Father also alleged that Appellants were forum shopping,

that Marion County is not a preferred venue, that E.S.J. and Mother reside in

1
The Johnson County adoption was filed under cause number 41D01-2110-AD-83. This Court’s decision
affirming the trial court’s ruling is In re Adoption of E.S.J., No. 22A-AD-1033, 2022 WL 17347889, at *7 (Ind.
Ct. App. Dec. 1, 2022).

Court of Appeals of Indiana | Opinion 23A-AD-1161 | September 28, 2023 Page 2 of 7
 Johnson County, and that, pursuant to Indiana Trial Rule 75(A), the preferred

venue is Johnson County.

[4] On May 16, 2023, the trial court issued its order granting transfer. This appeal

ensued.

Discussion and Decision
[5] “We review a trial court’s order on a motion to transfer venue for an abuse of

discretion.” Muneer v. Muneer, 951 N.E.2d 241, 243 (Ind. Ct. App. 2011)

(quoting Comm’r of Labor v. An Island, LLC, 948 N.E.2d 1189, 1190 (Ind. Ct.

App. 2011), trans. denied). The trial court abuses its discretion when its “decision

is clearly against the logic and effect of the facts and circumstances before [it],

or when [it] has misinterpreted the law.” Id.

[6] Here, Father did not file an appellee’s brief, and, in such a case, we “need not

develop an argument for [Father] but instead will reverse the trial court’s

judgment if [Appellants’] brief presents a case of prima facie error.” In re

Adoption of E.B., 163 N.E.3d 931, 935 (Ind. Ct. App. 2021) (citation and

quotation marks omitted). Prima facie error means “at first sight, on first

appearance, or on the face of it.” Jenkins v. Jenkins, 17 N.E.3d 350, 352 (Ind. Ct.

App. 2014). “Still, we are obligated to correctly apply the law to the facts in the

record to determine whether reversal is required.” Id.

[7] Appellants assert that Marion County is a preferred venue pursuant to Indiana

Trial Rule 75(A) and Indiana Code Section 31-19-2-2, and therefore the trial

court abused its discretion by transferring the case. “Interpretation of our trial
Court of Appeals of Indiana | Opinion 23A-AD-1161 | September 28, 2023 Page 3 of 7
 rules is a question of law that we review de novo.” Morrison v. Vasquez, 124

N.E.3d 1217, 1219 (Ind. 2019). “Our objective in construing their meaning is to

give effect to the intent underlying the rule.” In re Paternity of V.A., 10 N.E.3d

61, 63 (Ind. Ct. App. 2014). Questions of statutory interpretation are also

questions of law that we review de novo. Strozewski v. Strozewski, 36 N.E.3d 497,

499 (Ind. Ct. App. 2015). “When we interpret the statute, we attempt to

determine and give effect to the intent of the legislature.” Id. “We first

determine whether the statutory language is clear and unambiguous on its

face.” Id. “If it is, we will not interpret the statute, but will hold the statute to its

clear and plain meaning.” Id.

[8] Indiana Trial Rule 75(A) governs venue and specifies,

[U]pon the filing of a pleading or a motion to dismiss allowed by
Rule 12(B)(3), the [trial] court … shall order the case transferred
to a county … selected by the party first properly filing such
motion or pleadings if the court determines that the county …
where the action was filed does not meet preferred venue
requirements [and the] county selected has preferred venue[.]

Rule 75(A) then lists ten categories that are considered preferred venue. Trial

Rule 75(A) “does not create a priority among [the categories] establishing

preferred venue.” Strozewski, 36 N.E.3d at 500. “Preferred venue may lie in

more than one county, and if an action is filed in a county of preferred venue,

change of venue cannot be granted.” Id. One category of preferred venue is “the

county where a claim in the plaintiff’s complaint may be commenced under any

statute recognizing or creating a special or general remedy or proceeding.” Ind.

Court of Appeals of Indiana | Opinion 23A-AD-1161 | September 28, 2023 Page 4 of 7
 Trial Rule 75(A)(8). We have held that “Subsection (8) adopts special venue

statutes into the regulatory scheme of T.R. 75.” MacLeod v. Guardianship of

Hunter, 671 N.E.2d 177, 179 (Ind. Ct. App. 1996), trans. denied (1997).

“Subsection (8) retains the ‘statutory’ venue as an alternative venue, thereby

avoiding any conflict.” Id. (quoting In re Trust of Johnson, 469 N.E.2d 768, 772

(Ind. Ct. App. 1984), trans. denied (1985)).

[9] Adoption proceedings are governed by Indiana Code Article 31-19. With regard

to filing an adoption petition, Indiana Code Section 31-19-2-2 provides as

follows:

(a) Except as provided in subsection (b),[ 2] an individual who
seeks to adopt a child less than eighteen (18) years of age must, 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 governmental agency
having custody of the child is located;

(3) the attorney maintains an office; or

(4) the child resides.

2
Subsection (b) permits the filing of an adoption petition in any court having probate jurisdiction if either the
written consent from each individual whose consent is required or a certified order terminating the parental
rights of each parent is filed with the adoption petition.

Court of Appeals of Indiana | Opinion 23A-AD-1161 | September 28, 2023 Page 5 of 7
 ….

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

(Emphases added).3

[10] Appellants contend that Section 31-19-2-2 is a special venue statute to which

Trial Rule 75(A)(8) applies and therefore establishes preferred venue in an

adoption proceeding. In support, they cite Muneer, 951 N.E.2d 241. That case

involved the filing of a petition for a protective order under Indiana Code

Section 34-26-5-4(b). The petitioner filed her petition in her county of residence,

and the trial court denied the respondent’s petition to transfer venue. In

affirming the trial court’s denial, the Muneer court concluded,

Indiana Code section 34-26-5-4(b) requires that a petition for an
order for protection be filed in 1) the county in which the
petitioner resides; 2) the county in which the respondent resides;
or 3) the county in which the domestic or family violence
occurred. The Act therefore is a special venue statute to which
Trial Rule 75(A)(8) applies. Accordingly, pursuant to Trial Rule
75(A)(8), preferred venue lies in any county where an action
under the Act may be commenced.

951 N.E.2d at 243-44 (citations omitted).

3
In 2021, the legislature made an intentional policy decision to amend the statute to include the county
where the petitioner’s attorney maintains an office. Ind. Pub. Law 203-2021 § 3 (eff. July 1, 2021).

Court of Appeals of Indiana | Opinion 23A-AD-1161 | September 28, 2023 Page 6 of 7
[11] Here, like the statute at issue in Muneer, Section 31-19-2-2 dictates where an

adoption petition is to be filed. We conclude that Section 31-19-2-2 is a special

venue statute to which Trial Rule 75(A)(8) applies. 4 Thus, preferred venue lies

in any county where the petition is to be filed under Section 31-19-2-2.

Appellants filed their adoption petition in the county where their attorney

maintains an office in compliance with Section 31-19-2-2. As that is a county of

preferred venue pursuant to Trial Rule 75(A)(8), change of venue may not be

granted. We conclude that Appellants have made a prima facie showing that

the trial court abused its discretion in granting Father’s petition to transfer

venue. Therefore, we reverse.

[12] Reversed.

Brown, J., and Felix, J., concur.

4
We note that in In re Adoption of Z.D., 878 N.E.2d 495, 497 (Ind. Ct. App. 2007), the court found that
“[S]ection 31-19-2-2 describes where venue is proper for adoption petition proceedings, but does not provide
where venue is preferred.” In re Adoption of W.M., 55 N.E.3d 386, 388-89 (Ind. Ct. App. 2016), trans. denied,
relied on Z.D. to conclude that filing in a venue listed in Section 31-19-2-2 did not convey exclusive
jurisdiction to that court. However, these cases involved jurisdictional disputes and vastly different factual
circumstances than those here, were issued before Section 31-19-2-2 was amended to provide that an
adoption petition “must” be filed in the locations listed, and did not discuss Trial Rule 75(A)(8).

Court of Appeals of Indiana | Opinion 23A-AD-1161 | September 28, 2023 Page 7 of 7