FOR PUBLICATION
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
STEVEN J. HALBERT KELLY ROTA-AUTRY
Indianapolis, Indiana Marion County Office of Family
and Children
Indianapolis, Indiana
IN RE THE MATTER OF THE INVOLUNTARY )
TERMINATION OF PARENT-CHILD )
RELATIONSHIP OF K.E. AND W.E., MINOR )
CHILDREN, AND THEIR MOTHER C.E. )
)
Appellant, )
)
vs. ) No. 49A02-0401-JV-51
)
MARION COUNTY OFFICE OF FAMILY AND )
CHILDREN, )
)
Appellee. )
OPINION - FOR PUBLICATION
FRIEDLANDER, Judge
Christine Elliott appeals the denial of her motion to set aside a judgment
terminating her parent-child relationship with her sons, K.E. and W.E. The sole
issue on review is: Did the trial court abuse its discretion by
denying Elliotts motion to set aside filed more than two years after judgment
was entered?
We affirm.
The facts favorable to the judgment are that on August 31, 1998, the
Marion County Office of Family and Children (the MCOFC) filed a petition alleging
that K.E., born May 13, 1995, and W.E., born January 14, 1997, were
Children in Need of Services (CHINS). The children were subsequently adjudicated to
be CHINS. On November 30, 1999, the MCOFC filed a petition seeking
the involuntary termination of the parent-child relationship between Elliott and K.E. and W.E.
Hearings on the petition were held on April 4, 2001, and July
2, 2001, and evidence was heard from Elliott and a variety of social
services workers who had interacted with Elliott and her children. Elliott was
present and represented by counsel on both hearing dates. On July 9,
2001, the trial court issued an order terminating the parent-child relationship between Elliott
and K.E. and W.E. In the fall of 2002, K.E. and W.E.,
along with two additional siblings, were adopted by the same family.
See footnote On
August 4, 2003, Elliott filed a pro se motion to set aside the
trial courts judgment terminating the parent-child relationship (Motion to Set Aside). At
the time, Elliott was incarcerated at the Rockville Correctional facility in Rockville, Indiana,
serving a six-year sentence for dealing narcotics.
On January 5, 2004, the trial court held a hearing on the Motion
to Set Aside, wherein Elliott was represented by a public defender. Although
Elliotts Motion to Set Aside did not specifically seek relief under Ind. Trial
Rule 60(B), or any other rule, at the hearing her counsel implied that
a T.R. 60(B) foundation could be laid to set aside the July 2001
order. At the hearing, Elliott testified she was appealing the termination of
her parental rights, she was unaware when the July 2001 order issued that
she had thirty days to appeal, and that she hoped to be released
from jail in May 2004 and desired to reintroduce herself into K.E. and
W.E.s lives at that time. Elliott testified:
I went through a lot of things back then. I was doing
drugs and things I shouldnt have done. I have learned a lot
since I have been incarcerated. I just want to be a part
of my kids lives. [sic] If I have to do a
lot of things to be a part of their lives, I want to
be a part of their lives.
Transcript at 474-75. Elliotts attorney questioned why she delayed in filing her
Motion to Set Aside, to which Elliott responded: I was going through
a lot of trouble with drugs and I was in and out of
jail for the same case. It took me this long to realize
the person I was inside. Id. at 479. Elliott further claimed
a friend was building her a home in Poland, Indiana, she was on
good terms with her mother, and while she did not have a job
lined up when she was released from jail, she was able to work.
Elliott also testified she had not maintained contact with the children,
was unaware of their current circumstances in school, counseling, or with their adoptive
parents, and did not know if L.E. or W.E. even wanted to have
contact with her. Elliotts testimony was the only evidence offered at the
hearing.
Thereafter, the MCOFCs counsel asserted that no evidence or legal grounds supported setting
aside the judgment under T.R. 60(B), nor was setting aside the judgment in
the childrens best interest as they had been adopted over a year ago.
Counsel did, however, praise Elliotts positive decisions and offered to send a
letter to L.E. and W.E.s adoptive family, providing Elliotts current address and expressing
Elliotts desire to have contact with the children. Id. at 485.
The trial court subsequently denied Elliotts Motion to Set Aside, holding too much
time had passed for Elliott to appeal the July 2001 order.
Elliott now appeals the denial of her Motion to Set Aside, but frames
the issue as a direct appeal of the July 2001 order terminating her
relationship with K.E. and W.E., claiming: (1) insufficient evidence demonstrated a threat
to K.E. and W.E.s well-being; and (2) Elliotts due process rights were violated
by the State failing to adequately inform her what she needed to do
to keep her children and failing to give her a reasonable opportunity to
comply with its demands. We agree with the MCOFC that the proper
issue to address on appeal is whether the trial court properly denied a
motion to set aside a judgment terminating parental rights under T.R. 60(B).
As such, we do not address the substantive arguments raised by Elliott in
her brief.
Our standard of review is well settled:
The decision whether to set aside a judgment is given substantial deference on
appeal. Butler v. Shipshewana Auction, Inc., 697 N.E.2d 1285, 1288 (Ind. Ct.
App. 1998). Our standard of review is limited to determining whether the
trial court abused its discretion. Id. An abuse of discretion occurs
where the trial courts judgment is clearly against the logic and effect of
the facts and inferences supporting the judgment for relief. Id.
In reviewing the trial courts decision, we will not reweigh the evidence or
substitute our judgment for that of the trial court. Id. Upon
a motion for relief from judgment, the burden is on the movant to
show sufficient grounds for relief under Ind. Trial Rule 60(B). Id.
In re Paternity of Baby Doe, 734 N.E.2d 281, 284 (Ind. Ct. App.
2000). T.R. 60(B) enumerates several reasons for setting aside a final judgment.
Neither in her Motion to Set Aside nor at the January 2004
hearing, did Elliott specify which of T.R. 60(B)s eight enumerated reasons for relief
her motion was based upon, and therefore we will consider her claim under
T.R. 60(B)(8), which provides that a party may seek relief from a judgment
for any reason justifying relief. T.R. 60(B)(8). The rule provides that
a motion shall be filed within a reasonable time and must allege a
meritorious claim or defense. Id. Determining what is a reasonable time
period depends on the circumstances of each case, as well as the potential
prejudice to the party opposing the motion and the basis for the moving
partys delay. G.B. v. State, 715 N.E.2d 951 (Ind. Ct. App. 1999).
Further, a meritorious defense is one showing, if the case was retried
on the merits, a different result would be reached. In re Paternity
of Baby Doe, 734 N.E.2d at 284. Finally, [i]n ruling on a
T.R. 60(B) motion, the trial court must balance the alleged injustice suffered by
the party moving for relief against the interests of the winning party and
societal interest in the finality of litigation. Hoosier Health Sys., Inc. v.
St. Francis Hosp. & Health Ctrs., 796 N.E.2d 383, 388 (Ind. Ct. App.
2003).
Elliotts parental rights were terminated by virtue of the July 9, 2001 order.
Over two years later, Elliott moved to set aside that judgment.
During those years, Elliott was incarcerated and K.E. and W.E. were adopted by
the same family that also adopted two of their siblings. We find
that in the context of this case, two years is not a reasonable
time to delay challenge to a judgment terminating parental rights, especially when during
that time period the children at issue have been adopted and have presumably
established a sense of stability in their new family. Moreover, Elliotts stated
reasons for delay drug use and incarceration hardly provide a justifiable
basis for the two-year gap in her challenge, especially since both reasons were
within Elliotts own ability to control.
Additionally, at the January 2004 hearing, Elliott offered no evidence of a meritorious
claim or defense demonstrating that if a hearing on termination of the parent-child
relationship was retried on the merits, a different result would be reached, i.e.
Elliotts parental rights would not be terminated. The evidence was limited to
Elliotts own testimony, which dealt mainly with her desire to reintegrate into her
childrens lives after her anticipated prison release in May 2004. She offered
no new evidence to contradict any testimony offered at the previous two-day hearing
that culminated in the termination of Elliotts parental rights. Further, in balancing
any alleged injustice suffered by Elliott against the interests of the MCOFC and
society in general, the balance weighs against Elliott. The MCOFCs interest in
the placement of L.E. and W.E. in a stable home environment coupled with
societys interest in the finality of litigation involving such placement counsels in favor
of denying the Motion to Set Aside.
Based on the foregoing, despite Elliotts attempt to assert a belated appeal of
the termination of her parental rights, our proper review is from the denial
of a motion to set aside pursuant to T.R. 60(B). As Elliotts
two-year delay in challenging the July 2001 termination is not reasonable under the
circumstances and she offered no meritorious claim or defense, the trial court did
not abuse its discretion in denying her Motion to Set Aside.
Judgment affirmed.
BAKER, J., and BAILEY, J., concur.