In Re the Adoption of W.M. (Minor Child), D.M. and J.M. v. F.F., M.F., and The Indiana Department of Child Services

FILED
May 26 2016, 9:18 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
Donald W. Francis, Jr. Gregory F. Zoeller
Michelle B. Domer Attorney General of Indiana
Francis Berry & Domer
Robert J. Henke
Bloomington, Indiana David E. Corey
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Adoption of May 26, 2016
W.M. (Minor Child) Court of Appeals Case No.
28A01-1601-AD-56
D.M. and J.M.,
Appeal from the Greene Circuit
Appellants-Respondents, Court
v. The Honorable Erik Allen, Judge
Trial Court Cause No.
F.F., M.F., and The Indiana 28C01-1508-AD-25
Department of Child Services,
Appellee-Petitioner
Baker, Judge.
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[1] J.M. (Grandfather) and D.M. (Grandmother) (collectively, Grandparents)
appeal the order of the Greene Circuit Court transferring their adoption petition
to the Monroe Circuit Court. Finding no error, we affirm.
Facts
[2] W.M. (Child) was born on December 14, 2013, and was shortly thereafter
alleged to be a child in need of services (CHINS) in a case filed in Monroe
Circuit Court by the Indiana Department of Child Services (DCS). 1 Child was
placed with Grandparents, who live in Greene County and were caring for
Child’s older sister. Child was adjudicated to be a CHINS on February 3, 2014.
[3] In December 2013, when DCS was determining where to place Child,
Grandfather tested positive for marijuana use. DCS went ahead with the
placement, but he and Grandmother agreed with DCS “to be drug tested at
least once per month. If there is a positive screen in the future, [Child] will
immediately be removed from their home.” Appellee’s App. p. 41.
[4] In March 2015, DCS received a report indicating that Grandparents were using
methamphetamine. A drug screen showed that Grandmother was using
methamphetamine, but Grandfather’s screen was negative. As a result of
Grandmother’s positive screen, Child was removed from Grandparent’s home,
and the Monroe Circuit Court authorized placement of Child with her Aunt
1
The record before us does not include the circumstances surrounding the CHINS case.
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M.F. and Uncle F.F. (Aunt and Uncle), who were caring for two other siblings
of Child.
[5] On June 19, 2015, Grandparents petitioned the Monroe Circuit Court, seeking
intervention in the CHINS case and requesting that Child be returned to their
care. Before the Monroe Circuit Court had the opportunity to rule on this
motion, Grandparents filed an adoption petition regarding Child in Greene
Circuit Court. The Greene Circuit Court set a hearing for September 28, 2015.
Before this hearing, however, on September 21, 2015, the Monroe Circuit Court
granted Grandparents’ motion to intervene in the CHINS case. On September
24, 2015, Aunt and Uncle filed an adoption petition in the Monroe Circuit
Court. Grandparents filed a motion to dismiss Aunt and Uncle’s petition
pursuant to Indiana Trial Rule 12(B)(8), alleging that the same action was
pending in another Indiana court, but that motion was denied.
[6] On November 4, 2015, the Greene Circuit Court held a hearing to determine
whether DCS would consent to the Grandparents’ proposed adoption. On
December 3, 2015, Aunt and Uncle sought to intervene in the Greene County
adoption case, and moved to have the case transferred to the Monroe Circuit
Court. DCS filed a motion requesting the same on December 9, 2015.
[7] The following day, the Greene Circuit Court issued an order granting Aunt and
Uncle’s motion, and transferred the case to the Monroe Circuit Court. Its order
explained that it had consulted with the Monroe Circuit Court. Because there
were multiple cases relating to Child in Monroe County—including the CHINS
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case, a termination of parental rights case, and the Aunt and Uncle’s adoption
case—both Judges concluded that the Monroe Circuit Court would be the
preferred venue. Grandparents now appeal.
Discussion and Decision
[8] “A trial court’s order on a motion to transfer venue under T.R. 75(A) is an
interlocutory order and is reviewed under an abuse of discretion standard.”
Pratt v. Pierce, 713 N.E.2d 312, 315 (Ind. Ct. App. 1999). An abuse of discretion
occurs if the trial court’s decision is clearly against the logic and effect of the
facts and circumstances before the court, or if the trial court has misinterpreted
the law. Id.
[9] Grandparents have one argument on appeal: “[e]xclusive jurisdiction over the
adoption proceeding pertaining to [Child] lies with the Greene Circuit Court.”
Appellant’s Br. p. 3. They argue that, because they filed an adoption petition in
Greene County before Aunt and Uncle filed an adoption petition in Monroe
County, it was impermissible for the Greene Circuit Court to transfer the case
to the Monroe Circuit Court.
[10] We must be mindful of our Supreme Court’s advice “that the term ‘jurisdiction’
should not be used too broadly.” In re Custody of M.B., No. 65S04–1604–MI–
00180, 2016 WL 1436553, at *2 (Ind. Apr. 12, 2016). There are two types of
jurisdiction: “subjection matter jurisdiction is the power to hear and determine
cases of the general class to which any particular proceeding belongs”; and
“personal jurisdiction requires that appropriate process be effected over the
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parties.” K.S. v. State, 849 N.E.2d 538, 540 (Ind. 2006). Indiana courts have
such jurisdiction as is granted to them by the State constitution and statutes.
Benham v. State, 637 N.E.2d 133, 136 (Ind. 1994).
[11] Indiana Code section 31-19-2-2 lists where adoption petitions may be filed:
(a) A resident of Indiana who seeks to adopt a child less than
eighteen (18) years of age may, 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 government agency
having custody of the child is located; or
(3) the child resides.
(b) The county in which the adoption may be filed is a matter of
venue and not jurisdiction.
It is clear that Grandparents were allowed to file their adoption petition in
Greene County, under Indiana Code section 31-19-2-2(a)(1), as that is their
county of residence. But Aunt and Uncle were also allowed to file their
adoption petition in Monroe County, under Indiana Code section 31-19-2-
2(a)(2), as that is where Child’s wardship was located. Thus, both courts have
“jurisdiction,” as either can hear adoption cases. The question becomes
whether, as Grandparents contend, the Monroe Circuit Court was divested of
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jurisdiction when Grandparents filed their adoption petition in the Greene
Circuit Court.
[12] Grandparents’ argument that the Greene Circuit Court had “exclusive
jurisdiction” is foreclosed by our decision in In re Adoption of Z.D., 878 N.E.2d
495 (Ind. Ct. App. 2007). There, a grandparent filed an adoption petition, and
foster parents subsequently filed an adoption petition in another county. Id. at
496. The grandparent “argue[d] that the Benton Circuit Court had exclusive
jurisdiction over Z.D.’s adoption because her petition was filed before the foster
parent’s petition in Tippecanoe Circuit Court.” Id. We decided, however, that
“we cannot conclude that the Tippecanoe Circuit Court was required to divest
itself of jurisdiction . . . because [grandparent’s] petition to adopt Z.D. was
pending in Benton County.” Id. at 497.
[13] Since the first adoption petition did not create “exclusive jurisdiction,” we went
on to decide the case based on preferred venue:
Indiana Trial Rule 75(A) contains ten subsections, each setting
forth criteria establishing “preferred” venue. None of these
subsections precisely addresses the circumstances presented in
this case. Yet, pursuant to Rule 75(A)(1), preferred venue lies in
“the county where the greater percentage of individual
defendants included in the complaint resides[.]” Although there
are no “defendants” named in a petition for adoption, both Z.D.
and the [Tippecanoe County Department of Family and
Children] are located in Tippecanoe County. Moreover, the
CHINS and termination of parental rights proceedings occurred
in Tippecanoe Superior Court. All legal proceedings concerning
the care and custody of Z.D. have taken place in Tippecanoe
County.
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Id.
[14] For precisely the same rationale, the Monroe Circuit Court was the preferred
venue in this case. All of the following are pending in that court: (i) Child’s
CHINS case; (ii) a termination of parental rights case; and (iii) Aunt and
Uncle’s adoption petition. Moreover, Grandparents successfully intervened in
the CHINS case before the Monroe Circuit Court.
[15] Grandparents’ attempt to distinguish Z.D. by pointing out what we described as
“the unique circumstances of [that] case . . . .” Id. We were referring to the fact
that the grandparent had never received notice that the foster parents had filed
an adoption petition in a different county, and she therefore did not have an
opportunity to attend or contest the proceedings. Id. The Tippecanoe Circuit
Court granted the foster parents’ adoption petition, which the grandparent only
discovered when she showed up to a Benton Circuit Court hearing, where the
Tippecanoe County Department of Family and Children told her that the child
had already been adopted. Id. at 496.
[16] Therefore, when deciding to affirm, part of our analysis stressed “the State’s
‘strong interest in providing [a] stable home [ ]’ for Z.D.” Id. at 497 (quoting In
re Adoption of J.B.S., 843 N.E.2d 975, 977 (Ind. Ct. App. 2006)). Grandparents
argue that this concern is not present in this case, as Child has not yet been
adopted by either contender.
[17] We believe that these distinctions counsel just as strongly in favor of affirming
in this case. Unlike the grandparent in Z.D., Grandparents have notice that
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there is a competing adoption petition. Further, Grandparents have
successfully intervened in the Monroe County CHINS case, and their adoption
petition has been transferred to Monroe Circuit Court where they will be able to
argue that their petition should be granted and that Aunt and Uncle’s petition
should be denied.
[18] In essence, Grandparents are asking us to reverse the trial court for proactively
and correctly solving the issue that arose in the Z.D. case.2 We decline to do so.
[19] The judgment of the trial court is affirmed.
May, J., and Brown, J., concur.
2
We would also like to take the opportunity to thank and commend the Greene Circuit Court and the
Monroe Circuit Court for communicating and working together to promote judicial economy and efficiency.
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