H B v. B J ( 2023 )

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
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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).
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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
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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.
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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.
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….
(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).
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[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).
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