FILED Dec 11 2019, 9:46 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Scott H. Duerring Vincent M. Campiti Duerring Law Offices Nemeth, Feeney, Masters & South Bend, Indiana Campiti, P.C. South Bend, Indiana
IN THE COURT OF APPEALS OF INDIANA
D.T., December 11, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-AD-1334 v. Appeal from the St. Joseph Probate Court J.M., The Honorable Appellee-Petitioner Jason Cichowicz, Judge Trial Court Cause No. 71J01-1711-AD-111
Vaidik, Chief Judge.
Case Summary [1] D.T. (“Biological Father”) appeals the trial court’s order granting the adoption
of his two children by J.M. (“Adoptive Father”). Specifically, Biological Father
argues that the trial court failed to make any findings that would allow for his
Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019 Page 1 of 8 consent to be dispensed with. We agree with Biological Father and therefore
remand this case to the trial court.
Facts and Procedural History [2] L.M. (“Mother”) and Biological Father have two children, J.A.T.-R. (born in
August 2008) and J.A.T. (born in December 2009). Mother and Biological
Father got married sometime in 2009. In late 2010 or early 2011, Mother and
Biological Father separated. In April 2011, Biological Father was arrested and
charged with Class A felony dealing in methamphetamine. He later pled guilty
and was sentenced to forty years in the Indiana Department of Correction. See
20D03-1104-FA-7. Biological Father’s current release date is November 12,
2029.
[3] After Biological Father was arrested, Mother filed a petition to dissolve her
marriage to him. The divorce was final in June 2011. See 20D06-1104-DR-117,
20D06-1102-DR-64. According to the decree of dissolution of marriage,
Mother was awarded sole legal and physical custody of the children with any
visitation by Biological Father subject to her approval. Biological Father was
not ordered to pay any child support while he was incarcerated. See Tr. p. 44.
[4] When Biological Father was first incarcerated, Mother brought the children to
visit him. But after Mother met Adoptive Father, the visits stopped. Mother
and the children moved in with Adoptive Father in 2013, and Mother and
Adoptive Father got married in September 2014. Nevertheless, Biological
Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019 Page 2 of 8 Father tried to stay in contact with the children. He sent them cards and letters
and called Mother’s phone, but Mother did not give the cards and letters to the
children or answer his phone calls.
[5] In October 2017, Biological Father filed a petition for visitation with the
children, which the trial court denied “based upon the representation that the
child’s therapist does not recommend contact with [Biological Father].” See
20D06-1102-DR-64.
[6] The next month, Adoptive Father filed a petition to adopt the children. The
petition alleged that Biological Father’s consent to the adoption is not required
as follows:
10. The consent of [Biological Father] is not required because while the children were in the custody of another person, he, for a period of at least one year, failed without justifiable cause to communicate significantly with the children when able to do so or knowingly failed to provide for the care and support of the children when able to do so as required by law or judicial decree.
11. The consent of [Biological Father] is not required because [he] is presently incarcerated with the Indiana DOC following a methamphetamine manufacturing conviction. He is serving a sentence of more than twenty years. He has not had meaningful contact with these children for more than six years.
Appellant’s App. Vol. II pp. 7-8. Biological Father objected to the adoption,
and a hearing was held.
Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019 Page 3 of 8 [7] At the beginning of the hearing, the parties decided that they would present
evidence on the issue of consent first. During her testimony, Mother admitted
that Biological Father had tried to stay in contact with the children and that she
had “interfered with his ability to communicate with the children” by not giving
them his cards or letters or answering her phone. Tr. pp. 18-19. Mother also
did not dispute that Father was not ordered to pay any child support while he
was incarcerated. After hearing evidence on consent, the trial court said that it
was taking the issue of consent under advisement and that it would have a
ruling shortly. Id. at 46. When the court came back on the record, it ruled that
Biological Father’s “consent is required.” Id. at 47. In making this ruling, the
court explained, “I should tell the lawyers here that there is some recent
caselaw that discusses the whole child support issue as well as Mother’s
attempts to thwart communication and so that’s the reason and the basis.” Id.
Although finding that Biological Father’s “consent is required,” the court said
that it was moving “into the second phase of the case,” that is, “the phase of the
actual petition” and “what is in the best interests of the children.” Id. The
court noted that this didn’t “mean that I’ve made my decision about what’s
going to happen next, but I wanted you to be aware of why I’m doing what I’m
doing.” Id. After this second phase, the court issued an order granting
Adoptive Father’s petition to adopt the children. The order provides, in
relevant part:
[Biological Father’s] consent to the adoption of his biological children by [Adoptive Father] was required.
Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019 Page 4 of 8 ***
The primary concern for the court in all adoption proceedings remains the best interests of the child. . . .
***
The adoption statute fails to provide guidance for which factors to consider when determining the best interests of a child in an adoption proceeding. Case law, however, has noted the strong similarities between the adoption statute and the termination of parental rights statute with regard to best interest.
The Court must consider the totality of the circumstances in a termination of parental rights cause. These cases provide some guidance as to what constitutes an “unfit” parent. Such a parent cannot give a child a suitable environment at the time of the termination hearing.
[Biological Father] cannot provide any type of environment for these children. He will not be in any position to provide such an environment for them until they are adults. His children require permanency and stability today, not ten (10) years from now.
[Adoptive Father] has proven by clear and convincing evidence that the adoption by him of [the children] is in their best interest.
Appellant’s App. Vol. II p. 85 (citations omitted).
[8] Biological Father now appeals.
Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019 Page 5 of 8 Discussion and Decision [9] Biological Father contends that the trial court erred in granting Adoptive
Father’s petition to adopt the children. He argues that the court “completely
skipped over any findings of fact, or conclusions of law that would allow for
[his] consent to be dispense[d] with.” Appellant’s Br. p. 6. Accordingly, he
asks us to “vacate” the court’s order granting the adoption. Id. at 10.
[10] The granting of a petition for adoption is a multi-step process. Indiana Code
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FILED Dec 11 2019, 9:46 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Scott H. Duerring Vincent M. Campiti Duerring Law Offices Nemeth, Feeney, Masters & South Bend, Indiana Campiti, P.C. South Bend, Indiana
IN THE COURT OF APPEALS OF INDIANA
D.T., December 11, 2019 Appellant-Respondent, Court of Appeals Case No. 19A-AD-1334 v. Appeal from the St. Joseph Probate Court J.M., The Honorable Appellee-Petitioner Jason Cichowicz, Judge Trial Court Cause No. 71J01-1711-AD-111
Vaidik, Chief Judge.
Case Summary [1] D.T. (“Biological Father”) appeals the trial court’s order granting the adoption
of his two children by J.M. (“Adoptive Father”). Specifically, Biological Father
argues that the trial court failed to make any findings that would allow for his
Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019 Page 1 of 8 consent to be dispensed with. We agree with Biological Father and therefore
remand this case to the trial court.
Facts and Procedural History [2] L.M. (“Mother”) and Biological Father have two children, J.A.T.-R. (born in
August 2008) and J.A.T. (born in December 2009). Mother and Biological
Father got married sometime in 2009. In late 2010 or early 2011, Mother and
Biological Father separated. In April 2011, Biological Father was arrested and
charged with Class A felony dealing in methamphetamine. He later pled guilty
and was sentenced to forty years in the Indiana Department of Correction. See
20D03-1104-FA-7. Biological Father’s current release date is November 12,
2029.
[3] After Biological Father was arrested, Mother filed a petition to dissolve her
marriage to him. The divorce was final in June 2011. See 20D06-1104-DR-117,
20D06-1102-DR-64. According to the decree of dissolution of marriage,
Mother was awarded sole legal and physical custody of the children with any
visitation by Biological Father subject to her approval. Biological Father was
not ordered to pay any child support while he was incarcerated. See Tr. p. 44.
[4] When Biological Father was first incarcerated, Mother brought the children to
visit him. But after Mother met Adoptive Father, the visits stopped. Mother
and the children moved in with Adoptive Father in 2013, and Mother and
Adoptive Father got married in September 2014. Nevertheless, Biological
Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019 Page 2 of 8 Father tried to stay in contact with the children. He sent them cards and letters
and called Mother’s phone, but Mother did not give the cards and letters to the
children or answer his phone calls.
[5] In October 2017, Biological Father filed a petition for visitation with the
children, which the trial court denied “based upon the representation that the
child’s therapist does not recommend contact with [Biological Father].” See
20D06-1102-DR-64.
[6] The next month, Adoptive Father filed a petition to adopt the children. The
petition alleged that Biological Father’s consent to the adoption is not required
as follows:
10. The consent of [Biological Father] is not required because while the children were in the custody of another person, he, for a period of at least one year, failed without justifiable cause to communicate significantly with the children when able to do so or knowingly failed to provide for the care and support of the children when able to do so as required by law or judicial decree.
11. The consent of [Biological Father] is not required because [he] is presently incarcerated with the Indiana DOC following a methamphetamine manufacturing conviction. He is serving a sentence of more than twenty years. He has not had meaningful contact with these children for more than six years.
Appellant’s App. Vol. II pp. 7-8. Biological Father objected to the adoption,
and a hearing was held.
Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019 Page 3 of 8 [7] At the beginning of the hearing, the parties decided that they would present
evidence on the issue of consent first. During her testimony, Mother admitted
that Biological Father had tried to stay in contact with the children and that she
had “interfered with his ability to communicate with the children” by not giving
them his cards or letters or answering her phone. Tr. pp. 18-19. Mother also
did not dispute that Father was not ordered to pay any child support while he
was incarcerated. After hearing evidence on consent, the trial court said that it
was taking the issue of consent under advisement and that it would have a
ruling shortly. Id. at 46. When the court came back on the record, it ruled that
Biological Father’s “consent is required.” Id. at 47. In making this ruling, the
court explained, “I should tell the lawyers here that there is some recent
caselaw that discusses the whole child support issue as well as Mother’s
attempts to thwart communication and so that’s the reason and the basis.” Id.
Although finding that Biological Father’s “consent is required,” the court said
that it was moving “into the second phase of the case,” that is, “the phase of the
actual petition” and “what is in the best interests of the children.” Id. The
court noted that this didn’t “mean that I’ve made my decision about what’s
going to happen next, but I wanted you to be aware of why I’m doing what I’m
doing.” Id. After this second phase, the court issued an order granting
Adoptive Father’s petition to adopt the children. The order provides, in
relevant part:
[Biological Father’s] consent to the adoption of his biological children by [Adoptive Father] was required.
Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019 Page 4 of 8 ***
The primary concern for the court in all adoption proceedings remains the best interests of the child. . . .
***
The adoption statute fails to provide guidance for which factors to consider when determining the best interests of a child in an adoption proceeding. Case law, however, has noted the strong similarities between the adoption statute and the termination of parental rights statute with regard to best interest.
The Court must consider the totality of the circumstances in a termination of parental rights cause. These cases provide some guidance as to what constitutes an “unfit” parent. Such a parent cannot give a child a suitable environment at the time of the termination hearing.
[Biological Father] cannot provide any type of environment for these children. He will not be in any position to provide such an environment for them until they are adults. His children require permanency and stability today, not ten (10) years from now.
[Adoptive Father] has proven by clear and convincing evidence that the adoption by him of [the children] is in their best interest.
Appellant’s App. Vol. II p. 85 (citations omitted).
[8] Biological Father now appeals.
Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019 Page 5 of 8 Discussion and Decision [9] Biological Father contends that the trial court erred in granting Adoptive
Father’s petition to adopt the children. He argues that the court “completely
skipped over any findings of fact, or conclusions of law that would allow for
[his] consent to be dispense[d] with.” Appellant’s Br. p. 6. Accordingly, he
asks us to “vacate” the court’s order granting the adoption. Id. at 10.
[10] The granting of a petition for adoption is a multi-step process. Indiana Code
section 31-19-11-1(a) lists the prerequisites to granting a petition, including that
“the adoption requested is in the best interest of the child” and “proper consent,
if consent is necessary, has been given.” Ind. Code § 31-19-11-1(a). If the
requirements listed in the statute are met, “the court shall grant the petition for
adoption and enter an adoption decree.” Id.
[11] Generally, the first step in the process is determining whether the biological
parent’s consent to the adoption is required. Indiana Code section 31-19-9-8
addresses when consent is not required and provides, in relevant part:
(a) Consent to adoption, which may be required under Section 1 of this chapter, is not required from any of the following:
(2) A parent of a child in the custody of another person if for a period of at least one (1) year the parent:
Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019 Page 6 of 8 (A) fails without justifiable cause to communicate significantly with the child when able to do so; or
(B) knowingly fails to provide for the care and support of the child when able to do so as required by law or judicial decree.
(11) A parent if:
(A) a petitioner for adoption proves by clear and convincing evidence that the parent is unfit to be a parent; and
(B) the best interests of the child sought to be adopted would be served if the court dispensed with the parent’s consent.
[12] Here, the trial court specifically found that Section 31-19-9-8(a)(2) did not apply
and that Biological Father’s consent to the adoption was required. But if that
were true—if Biological Father’s consent was indeed required—then the
adoption could not proceed. However, the court went on to discuss “what
constitutes an ‘unfit’ parent” and granted the adoption. Presumably, the court
was referencing Section 31-19-9-8(a)(11), which provides another path for
dispensing with consent. But the court failed to make the specific findings
required by that provision, namely, that (1) Biological Father is unfit to be a
parent and (2) “the best interests of the child sought to be adopted would be
served if the court dispensed with the parent’s consent.”
Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019 Page 7 of 8 [13] In order to dispense with Biological Father’s consent pursuant to Section 31-19-
9-8(a)(11) and grant the adoption, the court was required to assess the best
interests of the children at two stages: (1) a finding that Biological Father is
unfit and that it is in the best interests of the children to dispense with Biological
Father’s consent pursuant to Section 31-19-9-8(a)(11) and (2) a finding that
adoption by Adoptive Father is in the children’s best interests pursuant to
Section 31-19-11-1(a). The trial court’s order appears to have conflated the first
best-interests inquiry with the second. We therefore remand this case with
instructions for the trial court to determine, first, whether Biological Father is
unfit to be a parent and, if so, whether it is in the best interests of the children to
dispense with his consent. Only if the court makes these first two
determinations should it move on to the best-interests analysis required under
Section 31-19-11-1(a).
[14] Reversed and remanded.
Najam, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019 Page 8 of 8