E.S., Appellant-Respondent v. C.H., et al., Appellees-Petitioners (2026)

MEMORANDUM DECISION ON REHEARING

[1] Mother petitions for rehearing following our memorandum decision in which we affirmed the trial court's decree of adoption in favor of Grandparents. We grant Mother's petition and re-affirm the trial court's judgment.

Facts and Procedural History

[2] As we explained in our memorandum decision:

On July 21, 2023, Grandparents filed a verified petition for the adoption of Child. Grandparents struggled to serve Mother with their petition. Certified mail to Mother's address was returned to Grandparents as unable to forward. An attempt to serve Mother while she was incarcerated in the Marion County Jail showed a return receipt dated the day of Mother's release on August 31, and Grandparents were thus uncertain if that service was in fact effective. Thus, on October 8, 2023, C.H. served a Notice of Adoption on Mother in person.

The Notice of Adoption was not the adoption petition, but it did inform Mother of the existence of the adoption petition and the trial court case number. The Notice also erroneously informed Mother that she had thirty days to file a motion to contest the adoption petition with the trial court. In fact, Indiana Code section 31-19-10-1(b) (2023) gave Mother fifteen days to file her motion to contest the adoption. However, the Notice of Adoption correctly informed Mother that, if she did not timely file a motion to contest the adoption, her consent to the adoption petition would be “irrevocably implied” and she would “lose [her] right to contest” the adoption. Appellant's App. Vol. 2, p. 42.

On October 27, nineteen days after C.H. hand delivered the Notice of Adoption to Mother, Mother sent a lengthy email to the trial court's staff. In her email, she stated that she “d[id] not want [her] daughter being adopted by” Grandparents and to “please ․ not proceed with allowing this adoption.” Ex. Vol. 1, p. 40. The chief bailiff for the court responded to Mother's email as follows:

The Court cannot consider or take action on improper ex-parte communication with the Court. We advise you to seek legal counsel for the proper steps/procedures to take. Would you please provide me with your current contact information to update our system so you can receive further notification on hearings in the matter. The Judge has set a remote Status Conference on 12/14/23 at 8:45 AM, and I have provided the hearing link information below.

Id. at 39. In response, Mother provided her contact information and stated that she was in contact with Indiana Legal Services for assistance with representation.

On December 8, Mother filed a pro se motion to contest the adoption and request for the appointment of counsel. The trial court appointed counsel for Mother four days later, and Mother's counsel filed a notice of appearance that same day. Over the next few months, the court held various status hearings. In the summer of 2024, the court appointed a guardian ad litem.

In December 2024, the court held an evidentiary hearing on whether Mother's motion to contest the adoption was timely filed or whether her consent to the adoption petition was to be irrevocably implied under the Indiana Code. After the submission of evidence at that hearing, Mother argued the following two and only two propositions: first, that Grandparents were estopped from arguing for the legally-correct fifteen-day rule because, in their Notice of Adoption to Mother, they had told her she had thirty days to file her motion to contest; and, second, that Mother's October 27, 2023, email to court staff nineteen days after she received the Notice of Adoption was the functional equivalent of a timely filed motion to contest the adoption.

Following the hearing, the court entered a written order in which it found that Mother's October 27, 2023, email to the trial court's staff “was not entered on the chronological case summary” and was not provided to Grandparents until the December 2024 hearing. Appellant's App. Vol. 2, p. 118. Accordingly, the court concluded that the email was an “improper ex parte communication” that the court would not consider. Id. The court then found that Mother's first properly filed motion to contest the adoption occurred on December 8, 2023, forty-two days after Mother's email to the court's staff and sixty-one days after C.H. had given Mother the Notice of Adoption. The court concluded that the December 8, 2023, filing was not a timely motion to contest under either the fifteen-day rule or the thirty-day statement provided to Mother by Grandparents. As the motion to contest was not timely filed, the court concluded that Mother's consent to the adoption was, as a matter of law, irrevocably implied.

In April 2025, the court held an additional hearing on whether Grandparents’ adoption of Child was in Child's best interests. Mother objected at that hearing only on the ground that she had been excluded by the court from presenting evidence as to whether Grandparents’ adoption of Child was in Child's best interests. Following that hearing, the court entered its decree of adoption granting Grandparents’ petition.

E.S. v. C.H., No. 25A-AD-1167, 2025 WL 3720345, at *1-2 (Ind. Ct. App. Dec. 23, 2025) (“E.S. I”) (alterations and omission in original).

[3] The Grandparents did not participate in Mother's appeal. We summarized the issues raised by Mother and rejected them as follows:

․ Mother raises the following three issues for our review: (1) whether the Grandparents properly served her with the petition for adoption; (2) whether the trial court denied Mother her right to counsel; and (3) whether the Notice of Adoption's incorrect thirty-day statement rendered the Notice ineffective as a matter of law.

None of Mother's issues is properly before us. First, at no point in the trial court proceedings did Mother object to the purportedly ineffective or improper service of the adoption petition. Our case law is clear that “[a]n untimely defense of insufficient service of process is waived.” B.A. v. State, 219 N.E.3d 134, 139 (Ind. Ct. App. 2023). Nor may a party raise issues for the first time on appeal absent certain circumstances that Mother does not contend apply to her service-of-process argument. See, e.g., Hochstetler v. State, 215 N.E.3d 365, 376 (Ind. Ct. App. 2023). We therefore do not consider Mother's service-of-process argument.

Mother's right-to-counsel argument is also not properly before us, albeit for a different reason. Mother complains that she “was never advised of her right to counsel” by the trial court or in the Notice of Adoption. Appellant's Br. at 24-25. Parents in adoption proceedings have a statutory right to counsel in Indiana. See, e.g., Taylor v. Scott, 570 N.E.2d 1333, 1335 (Ind. Ct. App. 1991), trans. denied. But Mother's specific argument is that the trial court “was obligated to advise Mother of her right to counsel ․ once Grandparents filed their Verified Petition for Adoption on July 7, 2023.” Appellant's Br. at 25.

Mother cites no authority for the proposition that, upon the filing of an adoption petition, the trial court must deliver same-day notice of the right to counsel to all parties named in the petition. Mother did not dispute in the trial court that she first received notice of the adoption proceedings on October 8, 2023, and the trial court found that Mother's first filing with the trial court was her December 8, 2023, pro se motion to contest the adoption and request for the appointment of counsel. The trial court appointed counsel for Mother four days after her request. Mother's argument on appeal that she was entitled to counsel prior to her December 8, 2023, request is not supported by cogent reasoning or citation to authority, and we do not consider it. See Ind. Appellate Rule 46(A)(8)(a).

Finally, Mother argues that the Notice of Adoption was invalid on its face because it mistakenly informed Mother that she had thirty days to file her motion to contest the adoption when in fact she had fifteen. Mother's position on appeal is exactly contrary to the position she took in the trial court, and we will not consider it. Further, whether Mother had fifteen days or thirty days to file her motion to contest is irrelevant when, according to the trial court, she did not file it for sixty-one days.

Id. at *2. And we ended our analysis with the following comment:

We emphasize that Mother's trial counsel never challenged Grandparents’ service of process on Mother. Had Mother's counsel done so, a record could have been made on that issue, and, if appropriate, the trial court may have been able to cure any error. We also emphasize that Mother's appellate counsel does not challenge the trial court's finding that Mother's October 27, 2023, email to the trial court's staff was not an acceptable filing, which meant that Mother's December 8, 2023, pro se motion to contest the adoption was Mother's first, and untimely, objection to Grandparents’ petition. As that issue is not presented in this appeal, we will not consider it either.

Id. at *3. We therefore affirmed the trial court's judgment.

[4] This petition for rehearing ensued.

Discussion and Decision

[5] On rehearing, Mother first asserts that our prior memorandum decision was mistaken in stating that she did not object to the purported untimely service of process. In support of her argument, she cites language from a motion she filed with the trial court in April 2025, well after the court had found Mother's consent to be irrevocably implied and shortly before the court held the best-interests hearing. In that motion, Mother stated that granting Grandparents’ adoption petition would be in violation of her state and federal due process rights because “she was never served with a summons or complaint ․” Appellant's App. Vol. 2, p. 150.

[6] We understand where our prior discussion on this point may have been unclear, and so we supplement it by noting that Mother did assert a due-process statement in a pretrial motion shortly before the best-interests hearing. Nonetheless, Mother cites no authority for her proposition that she can raise ineffective service of process for the first time to the trial court some eighteen months after she was personally served by C.H. (after substantial difficulty effecting service of process on Mother) and some sixteen months after Mother had formally appeared in court by counsel. That was the essence of our decision in our prior memorandum decision, and Mother's April 2025 pretrial motion was not a timely preservation of that question for appellate review.

[7] Mother also takes issue with our conclusion that, under Indiana Appellate Rule 46(A)(8)(a), she failed to preserve her argument regarding her statutory right to counsel. Mother in particular takes issue with our assertion that she did not cite relevant authority for her proposition regarding her statutory right to counsel.

[8] We confirm our prior analysis, but we again supplement it. Although we continue to recognize that parents in adoption proceedings have a statutory right to counsel, Mother did not argue fundamental error in her initial brief to our Court, nor did she argue that the fifteen-day timeframe required to contest an adoption under Indiana Code section 31-19-10-1 must mean the first fifteen days after the appointment (or appearance) of counsel. Rather, Mother's argument to our Court completely disregarded the record of this case.

[9] Here, the trial court did in fact appoint counsel for Mother in December 2023 following the first filing she made with the court. Mother was then represented by counsel over the ensuing twelve months, and, in December 2024, the court held a fact-finding hearing to determine whether Mother's consent to the adoption had been irrevocably implied.

[10] At that hearing, Mother, by counsel, did not argue that the trial court could not consider the period of time prior to the court's appointment of Mother's counsel for determining whether her consent had been irrevocably implied. Instead, Mother, by counsel, argued in relevant part that Mother's October 2023 email sufficed as a timely adoption contest. The trial court then proceeded to hear Mother's claims on the merits and rejected them following the December 2024 hearing, concluding that her consent to the adoption had been irrevocably implied.

[11] Now, in her initial brief and on rehearing, Mother argues, for the first time on appeal, that because the trial court used the uncontested timeframe from before the appointment of her counsel to determine that her consent to the adoption had been irrevocably implied, that timeframe must have been a critical time in which she was entitled to, but had not yet received, counsel. In essence, Mother seeks to use the trial court's conclusion on arguments presented to it to obtain reversal of the trial court's judgment on an argument never presented to it.

[12] The parties were not given an opportunity in the trial court to make a record on Mother's new argument. The trial court was not given an opportunity to cure any error that may have been revealed by such a record. And Mother's attempt on appeal to use the trial court's conclusion on issues raised to it to argue error on an unraised issue is not persuasive. We therefore once again decline Mother's request to reach her right-to-counsel argument in the first instance on appeal.

[13] Mother next argues that we erred when we stated that “Mother's appellate counsel does not challenge the trial court's finding that Mother's October 27, 2023, email to the trial court's staff was not an acceptable filing ․” Id. at *3. To support her contention on rehearing that she did make that argument, Mother cites various statements made on pages 26-28 of her initial brief to our Court. Those pages reflect Mother's argument regarding her right to counsel. Indeed, immediately prior to all the excerpts Mother now pulls from those pages is the language she originally used to frame those excerpts: “the trial court likewise failed to advise Mother of [her] right [to counsel].” Appellant's Br. at 26.

[14] Thus, Mother's assertions in that part of her brief were aimed at supporting her contention that she was improperly denied her right to counsel. Her argument was not that the trial court erred as a matter of law or fact when it concluded that her October 27, 2023, email was an impermissible ex parte communication, or that such error required reversal outside the context of the right to counsel. As we made clear in our prior memorandum decision, had we thought that to have been a fair reading of her brief, we would have taken it. Mother's use of her petition for rehearing to recast the arguments she presented in her initial brief to our Court is not well-taken.

[15] Finally, Mother asserts as follows: “This Court's refusal to consider any of Mother's arguments on appeal by its sua sponte invocation of waiver and lack of cogency is contrary to its preference to decide issues on the merits, due process, and Mother's constitutional right to an appeal.” Pet. for Reh'g at 13 (bold font removed). We reject this characterization of our responsibility to apply the relevant rules of law and procedure to the facts before us. In addition, Mother's argument here is not supported by cogent reasoning, and we do not consider it. See, e.g., Finnegan v. State, 240 N.E.3d 1265, 1269-70 nn.1 & 2 (Ind. 2024) (refusing to consider, presumably sua sponte, an argument that was not supported by cogent reasoning, and also refusing to consider a constitutional argument that was raised for the first time on appeal).

[16] For all of these reasons, we once again affirm the trial court's judgment.

[17] Affirmed.

Mathias, Judge.

Judge Pyle concurs. Judge Vaidik votes to deny the Petition. Pyle, J., concurs. Vaidik, J., votes to deny the Petition.