MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[1] K.T. (“Mother”) appeals
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the default order adjudicating her children, Ar.M.-T. (born May 1, 2008), C.M.-T. (born July 25, 2010), and L.C. (born October 31, 2015), and her grandchild, An.M.-T. (born to Ar.M.T. on August 3, 2023)
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(collectively, “Children”) to be Children in Need of Services (“CHINS”), and the denial of her subsequent motion to set aside the default judgment for lack of adequate service. Mother raises two issues on appeal, but we address only the restated dispositive issue of whether the default judgment is void for lack of personal jurisdiction due to insufficient service of process.
[2] We reverse.
Facts and Procedural History
[3] In mid-July of 2023, the Indiana Department of Child Services (“DCS”) received a report that Mother was using drugs, had been arrested for battery of a neighbor child who was under age fourteen, and had left her three children without appropriate supervision. In the course of investigating the allegations, DCS attempted to communicate with Mother, but Mother instructed DCS to contact her through her attorney. DCSs attempts to contact Mothers attorney were unsuccessful, as were its attempts to contact Mother through her relatives and boyfriend.
[4] On August 3, 2023, fifteen-year-old Ar.M.-T. gave birth to An.M.-T. On August 8, Mother contacted DCS to inform them that one of her children was with the childs father and the other children were with one of Mothers friends. DCS subsequently reviewed Childrens educational records and discovered that Children had had excessive absences from school and were then withdrawn from school to be home-schooled.
[5] On August 8, DCS filed petitions alleging Children were CHINS due to allegations of drug abuse, lack of adequate supervision of Children while Mother was incarcerated on charges of battery against a minor, DCSs inability to make contact with Mother and Children due to Mothers evasive actions, and Mothers educational neglect of Children. An initial/detention hearing was set for 1:30 p.m. that same day. Mother did not appear at the hearing, and a Family Case Manager (“FCM”) from DCS informed the court that she had notified Mother by text message of the hearing. In Mothers absence, the court found probable cause and ordered Children to be detained. The Chronological Case Summary (“CCS”) entry reflecting this hearing noted the following, in relevant part: “Initial hearing on the mother, [K.T.], is set for 08/24/2023 at 1:30 pm. The Court sets publication hearing on the mother, if the Department is unable to locate her, for 11/16/2023 at 1:30 pm.” App. v. II at 4.
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[6] On August 15, 2023, nine days before Mothers initial hearing was scheduled to be held, the court on its own scheduled a hearing for that day. That same day, DCS filed an “Affidavit of Service” and a “Notice to Appear.” Id. at 39. The Affidavit stated that Sarah Eckels, a FCM, had personal knowledge of Mothers identity; she served Mother with “the Summons of Notice of Hearing of CHINS Initial Hearing set for August 15, 2023[,] at 1:30PM [sic]” pursuant to Indiana Trial Rule 4.1; and the personal service took place on August 10, 2023, at the “Vanderburgh County Department of Child Services.” Id. The Affidavit further asserted “[t]hat [Mother] did accept and acknowledge receipt of the Summons and Notice to Appear on that date.” Id. The Affidavit did not allege that Mother was served with the CHINS petitions. The Affidavit was not signed under penalties of perjury by Sarah Eckels, however; it was signed under penalties of perjury by Alex Mortimer, a FCM Supervisor. The second page of the Affidavit contains only the handwritten name “Nicole Davids,” under which is handwritten: “FCM 08/10/23.” Id. at 40. Below that is a signature line with Mothers name typed below it; however, on the signature line is only the handwritten notation, “Refused to sign.” Id.
[7] The document attached to the Affidavit of Service was not a summons, as the Affidavit indicated. Rather, it was a “Notice to Appear” to Mother which stated:
You are hereby advised to appear personally before the Judge of the Vanderburgh Superior Court 4 (812-435-5126) for a(n) _ Motion to Control Hearing on 08/15/2023 at 1:30PM. The address is 1 NW Martin L King Jr Bl # 129, Evansville, IN 47708.
If you fail to appear the Court may rule in your absence.
Id. at 41 (emphasis in original). The Notice was dated “08/10/2023” and was “submitted”—but not signed—by Alex Mortimer,
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the FCM Supervisor, and her address was provided below her name. Id.
[8] The record contains no Summons in any of Childrens cases, and no indication that Summonses were prepared. The CCS contains the following entry for August 15, 2023:
8/15/23 – Service Returned Served (E-Filing)
File Stamp: 08/15/2023
Filed By: Petitioner Indiana Department of Child Services
Notice to Appear and Affidavit of Service [K.T.]
Id. at 5. However, the record contains no Return of Service other than the Affidavit of Service and Notice to Appear.
[9] Mother did not appear at the August 15 hearing. Counsel for DCS informed the trial court that Mother had been incarcerated in the Vanderburgh County Jail on August 10, 2023. Counsel further stated, “We did take a Notice to Appear out to Mother. ․ Out to the Vanderburgh County [J]ail. And that was filed of record on August 15th. And on the affidavit of service Mother did refuse to sign.” Tr. at 11. The trial court stated: “That is considered good service because she was notified, she had it, and she refused to sign it. So the Court considers that good service.” Id. at 11-12. DCS moved for a default order against Mother, and the trial court stated: “The Court finding that she has voluntarily failed to appear, does now default her and declare each child to be a child in need of services․.” Id. at 12. The court issued a writ of attachment for Mother to be held without bond pending a detention hearing.
[10] On August 22, 2023, Mother was detained on the writ. Later that day, Mother, by counsel, filed a motion to set aside the default judgment due to improper service. At a hearing held later that day, Mother testified that she “was given a big stack of papers at the Vanderburgh County jail” at some point. Id. at 16. Mother did not read all the papers, but she testified that she was not given a notice to appear for an August 15, 2023, hearing. Mothers counsel pointed out the flaws in the Affidavit of Service and Notice to Appear; specifically, that DCS could not have served Mother with documents on August 10 at its Vanderburgh Office, as alleged in the Affidavit, because Mother was in the jail that day. The attorney for DCS argued that the incorrect location of service was merely a “scriveners error.” Id. The court released Mother from detention on the writ and continued the matter to August 29 to give DCS time to produce witnesses to testify regarding service.
[11] At the hearing on August 29, DCSs counsel argued that the Affidavit contained two “scriveners errors,” one regarding who served Mother and the other regarding where Mother was served. Id. at 22-23. DCSs counsel stated that, in fact, FCM Nicole Davids was the person who served Mother on August 10 and that she did so in person at the Vanderburgh County jail. The trial court swore in Davids and Mortimer and questioned them simultaneously. The transcript of that hearing indicates that only one of the two witnesses agreed to testify truthfully and indicated that she had heard the prior statements made by DCSs counsel. However, both witnesses affirmed that the DCS lawyers summary of the facts of service was accurate. There was no testimony that Mother was served with a summons or a copy of the CHINS petitions
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on August 10. The trial court denied Mothers motion to set aside the default judgment and set the matter for a disposition hearing. Mothers counsel noted a continuing objection to the jurisdiction of the court due to insufficient service.
[12] Mother filed a motion to correct error related to the trial courts finding that Mother had been served properly, and a motion to dismiss for lack of jurisdiction. On December 1, 2023, the trial court denied those motions. On January 9, 2024, the court held a dispositional hearing and ordered Mother to participate in services under a dispositional decree. This appeal ensued.
Discussion and Decision
[13] Mother contends that the default CHINS orders are void for lack of personal jurisdiction because DCS never properly served her as required by the Indiana Trial Rules and Due Process.
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“The existence of personal jurisdiction over a defendant is a question of law and a constitutional requirement to rendering a valid judgment[.] ․ Thus, we review a trial courts determination regarding personal jurisdiction de novo.” Munster v. Groce, 829 N.E.2d 52, 57 (Ind. Ct. App. 2005). Although we do not defer to the trial courts legal conclusion as to its existence, personal jurisdiction turns on facts; accordingly, findings of fact by the trial court are reviewed for clear error. Grabowski v. Waters, 901 N.E.2d 560, 563 (Ind. Ct. App. 2009), trans. denied. Clear error exists where the record does not offer facts or inferences to support the trial courts findings or conclusions of law. Id.
The question as to whether process was sufficient to permit a trial court to exercise jurisdiction over a party involves two inquiries: whether there was compliance with the Indiana Trial Rules regarding service, and whether the attempts at service comported with the Due Process Clause of the Fourteenth Amendment. Id. It is commonly understood that procedural due process includes notice and an opportunity to be heard. Trigg v. Al–Khazali, 881 N.E.2d 699, 702 (Ind. Ct. App. 2008), rehg denied.
D.L.D. v. L.D., 911 N.E.2d 675, 679 (Ind. Ct. App. 2009), trans. denied; see also Grabowski, 901 N.E.2d at 563 (noting ineffective service of process prohibits a trial court from having personal jurisdiction over a defendant, and any judgment issued in such a case is void and a nullity).
[14] Indiana Trial Rule 3 provides that a civil proceeding is “commenced by filing with the court a complaint or equivalent pleading,” and “where service of process is required, by furnishing to the clerk as many copies of the complaint and summons as are necessary.” See also Ind. Trial Rule 4(B) (“Contemporaneously with the filing of the complaint or equivalent pleading, the person seeking service ․ shall furnish to the clerk as many copies of the complaint and summons as are necessary[, and a]ffidavits and any other information relating to the summons and its service ․ shall be included in a praecipe attached to or entered upon the summons.”); T.R. 4(E) (requiring that a summons and complaint “shall be served together” unless otherwise ordered); Indiana Code Section 31-34-10-2(b), (c) (requiring that a summons “shall be issued under Rule 4 of the Indiana Rules of Trial Procedure[,]” and a copy of the CHINS petition “must accompany each summons.”).
[15] Trial Rule 4(A) provides that jurisdiction over a person is obtained in the following ways: (1) the person commences or joins in the action; (2) the person is served with a summons or enters an appearance; or (3) any other law subjects the person to the power of the court. Here, Mother did not commence or join in the action, she did not enter her appearance, and no other law subjected her to the power of the court. Thus, the juvenile court could only exercise personal jurisdiction over Mother if she was served with a summons.
[16] Indiana Trial Rule 4(C) mandates that certain information be included in the summons, including: the name and address of the person being served; the “name, address, and telephone number of the attorney for the person seeking service;” the time within which the person being served must respond, “and a clear statement that in case of his failure to do so, judgment by default may be rendered against him for the relief demanded in the complaint.”
[17] Service may be made upon individuals by, among other things, “delivering a copy of the summons and complaint to [the individual] personally.” T.R. 4.1(A)(2). However, “[s]ervice of summons upon a person who is imprisoned ․ shall be made by delivering or mailing a copy of the summons and complaint to the official in charge of the institution.” T.R. 4.3. The official then has a “duty” to “immediately deliver the summons and complaint to the person being served” and “indicate upon the return whether the person has received the summons․” Id.
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[18] The trial rules also clearly require that
[t]he person making service shall promptly make his return upon or attach it to a copy of the summons which shall be delivered to the clerk. The return shall be signed by the person making it, and shall include a statement:
(1) that service was made upon the person as required by law and the time, place, and manner thereof; ․
T.R. 4.15(A). “The return, along with the summons to which it is attached or is a part, ․ [and] affidavits furnished with the summons ․ shall be filed by the clerk with the pleadings ․ and thereupon shall become a part of the record, and have evidentiary effect as is now provided by law.” T.R. 4.15(B). “The clerk shall also enter an issuance date upon any summons issued ․. Such filing or issuance date shall constitute evidence of the date of filing or issuance ․.” Id. However, “[n]o summons or the service thereof shall be set aside or be adjudged insufficient when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond.” T.R. 4.15(F).
[19] In this case, DCS failed to comply with any of the above-referenced trial rules and statutes. Indiana Code Section 31-34-10-2 requires that a summons must be served with a CHINS petition. Trial Rule 3 provides that a civil proceeding is not “commenced” unless a copy of the summons is furnished to the court clerk along with the complaint. Trial Rule 4(A), (B), and (E) also require such a filing of the summons. Trial Rule 4(C) specifies what the summons must contain, and Trial Rule 4.15 requires the filing of a return as proof of service. However, there is no evidence in the record that a summons was issued or that DCS served Mother with a summons or filed a return showing a summons was served.
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Although DCS filed an Affidavit of Service, any such affidavit does not take the place of a summons; rather, it must be “included in a praecipe attached to or entered upon the summons.” T.R. 4(B) (emphasis added); see also T.R. 4.15(B) (noting the summons must be filed “along with” the return).
[20] Moreover, neither the Affidavit of Service nor the Notice to Appear contain all the information that is required in a summons. For example, neither contains the correct address for Mother, i.e., the Vanderburgh County Jail; neither contains the name, address, and telephone number of the DCS attorney; and, critically, neither contains “a clear statement that in case of [Mothers] failure to [timely respond], judgment by default may be rendered against h[er] for the relief demanded in the complaint.”
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T.R. 4(C).
[21] Nor is it clear that Mother was ever even served with copies of the CHINS petitions.
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The Affidavit of Service asserts only that the “Summons of Notice of Hearing” was served. App. v. II at 39. Furthermore, that Affidavit was not signed by the person who it alleges served Mother, i.e., Sarah Eckels, and it asserts that Mother was personally served at the local DCS office when it is uncontested that Mother was incarcerated in the local jail at that time. The Affidavit further inaccurately asserts that Mother “did accept and acknowledge receipt of the Summons and Notice to Appear” when, in fact there was no summons, Mother refused to sign an acknowledgement of service of the Affidavit of Service, and Mother testified at the hearing that she never received the Notice of Hearing. And there was no testimony or other evidence presented that Mother was ever served with copies of the CHINS petitions.
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[22] DCS asserts that service was sufficient because Mother had actual knowledge of the pending CHINS actions. However, “[a]ctual knowledge of the pending lawsuit derived from sources other than service is not relevant to the question whether the manner of service satisfies due process.” Front Row Motors, LLC v. Jones, 5 N.E.3d 753, 759 (Ind. 2014) (internal quotation marks and citation omitted). Nor do we find that service should be found sufficient under Trial Rule 4.15(F), as DCS contends. That rule may cure only technical defects in service of process. See, e.g., Anderson v. Wayne Post 64, Am. Legion Corp., 4 N.E.3d 1200, 1210 (Ind. Ct. App. 2014) (citing LaPalme v. Romero, 621 N.E.2d 1102, 1106 (Ind. 1993)), trans. denied. When there was no evidence of service of a summons and/or complaint, as is the case here, then there was no service to be cured by Trial Rule 4.15(F). Id.
Conclusion
[23] The record does not disclose that DCS ever sufficiently served Mother in accordance with the Trial Rules and the requirements of Due Process. Therefore, the trial court lacked personal jurisdiction, and the default CHINS judgment is void.
[24] Reversed.
FOOTNOTES
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. Childrens respective fathers admitted that their respective children were CHINS, and they do not participate in the appeal.
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. It is undisputed that Mother is the custodian of An.M-T., her grandson.
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. Each of the four children has a separate case number and record. Unless otherwise noted, we cite only to the documents in Ar.M.-T.’s CHINS case, as all Childrens case records are identical or nearly so.
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. There was no signature on the Notice to Appear.
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. After Davids and Mortimer testified, their counsel stated that Mother was served with a “petition packet that included the preliminary inquiry.” Id. at 24. However, no witness testified to that fact, and there was no evidence regarding exactly what the “petition packet” contained. Id.
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. Contrary to the States contention, Mother did raise the issue of Due Process in her appeal brief.
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. Mother asserts that compliance with T.R. 4.3 is required when the person to be served is incarcerated, and, therefore, DCSs admitted failure to comply with that rule, alone, shows insufficient service. However, as we find DCS failed to prove service of a summons and complaint by any method, we do not address whether compliance with the method of service outlined in T.R. 4.3 was mandatory.
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. Although the CCS contains a notation “Service Returned Served” on August 15, 2023, the only documents in the record regarding service are the “Notice to Appear and Affidavit of Service․” App. v. II at 5.
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. Although the Notice to Appear contains the statement, “If you fail to appear the Court may rule in your absence,” that is hardly a clear statement that a default judgment could be entered against Mother finding her children to be CHINS, especially when the Notice inaccurately states that the hearing is a “Motion to Control Hearing” rather than an initial CHINS hearing. App. v. II at 41.
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. Mother has not waived this claim by failing to raise it in the trial court, as DCS asserts. Rather, Mother repeatedly objected to the sufficiency of service.
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. The statement of the DCS attorney that Mother was served with a “petition packet that included the preliminary inquiry” does not disclose that CHINS petitions were in that packet and, in any case, is not evidence. Tr. at 24. Moreover, as Mother notes in her Reply Brief, each of the four CHINS petitions and preliminary inquiries totaled sixteen pages; yet, Mother testified that she was only given thirty-seven pages of documents at the Vanderburgh County Jail.
Memorandum Decision by Judge Bailey
Chief Judge Altice and Judge Mathias concur.
Altice, C.J, and Mathias, J., concur.