In Re the Adoption of H.A.F., A.J.F. v. A.D.F. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 23, 2016
• Docket: 71A03-1505-AD-364
• Status: Published

Opinion

FILED MEMORANDUM DECISION Mar 23 2016, 6:38 am

CLERK Indiana Supreme Court Pursuant to Ind. Appellate Rule 65(D), Court of Appeals and Tax Court this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John A. Kindley John E. Broden Lakeville, Indiana Troy D. Warner Leone Halpin, LLP South Bend, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Adoption of H.A.F., March 23, 2016 Court of Appeals Cause No. A.J.F., 71A03-1505-AD-364 Appellant, Appeal from the St. Joseph Probate Court v. The Honorable James N. Fox, Judge A.D.F., Trial Court Cause No. Appellee. 71J01-1404-AD-28

Barnes, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 1 of 14 Case Summary [1] A.J.F. (“Father”) appeals the trial court’s order regarding a petition to adopt his

child, H.A.F., which was filed by A.D.F. (“Petitioner”). We affirm.

Issues [2] Father raises two issues. We address one dispositive issue, which we restate as

whether Father’s consent to the adoption was required.

Facts [3] H.A.F. was born to A.B. (“Mother”) and Father in December 2004. Father

would usually see H.A.F. at Father’s mother’s house, where H.A.F. visited

every other weekend. Mother began dating Petitioner in January 2006, they

began living together in the spring of 2008, and they have a child together.

Other than a two-year period where they lived apart with family members to

save money for a house, Petitioner, Mother, their child, and H.A.F. have lived

together since 2008.

[4] Father was incarcerated during 2006 and 2007 due to a theft conviction and

spent six months in a work release placement in 2008. In 2009, Father was

arrested and ultimately pled guilty to Class A felony rape, two counts of Class

A felony criminal deviate conduct, and Class D felony impersonating a law

enforcement officer. He was sentenced to seventy-five years in the Department

of Correction, and he is not scheduled to be released until 2048.

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 2 of 14 [5] In April 2014, Petitioner filed a petition to adopt H.A.F. Mother consented to

the adoption. Petitioner alleged that Father’s consent to the adoption was

unnecessary because he is unfit and because he failed to support H.A.F. for

twelve months or more. Father filed a motion to contest the adoption and

alleged that he had been supporting H.A.F.

[6] Father also filed a motion to dismiss, arguing that the adoption was improper

under Indiana Code Section 31-19-15-1 because Mother would be divested of

her parental rights if the adoption occurred. On September 2, 2014, the trial

court denied Father’s motion to dismiss. The trial court found that the

divesting statute did not “operate automatically in the manner suggested by

Father.” App. p. 29. The trial court based its decision on In re Adoption of

J.T.A., 988 N.E.2d 1250 (Ind. Ct. App. 2013), trans. denied. The trial court

noted that whether Petitioner and Mother could “prove the family relationships

that they allege is still an open question.” Id.

[7] After an evidentiary hearing, the trial court entered an order noting that Father

had urged the trial court to reconsider its position on Indiana Code Section 31-

19-15-1, but the trial court declined to do so. The trial court found that

“Mother and Petitioner, along with their shared biological child and [H.A.F.],

are operating as a family unit and have been operating as a family unit for

years.” App. p. 10. The trial court also found that Father’s consent to the

adoption was not required pursuant to Indiana Code Section 31-19-9-8 because

Petitioner proved Father was unfit. The trial court also found that H.A.F.’s

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 3 of 14 best interests “would be served by dispensing with Father’s consent to her

adoption.” Id. at 14.

[8] At Father’s request, the trial court entered final judgment pursuant to Indiana

Trial Rule 54(B). Father now appeals.

Analysis [9] Father argues that the trial court erred when it concluded that his consent to the

adoption was unnecessary. When reviewing a trial court’s ruling in an

adoption proceeding, we will not disturb that ruling unless the evidence leads to

but one conclusion and the trial court reached an opposite conclusion. In re

Adoption of M.A.S., 815 N.E.2d 216, 218 (Ind. Ct. App. 2004). We will not

reweigh the evidence but instead will examine the evidence most favorable to

the trial court’s decision together with reasonable inferences drawn therefrom to

determine whether sufficient evidence exists to sustain the decision. Id. at 218-

19. The decision of the trial court is presumed to be correct, and it is the

appellant’s burden to overcome that presumption. Id. at 219.

[10] Indiana Code Section 31-19-11-1(a) provides that the trial court “shall grant the

petition for adoption and enter an adoption decree” if the court hears evidence

and finds, in part, that “proper consent, if consent is necessary, to the adoption

has been given.” According to Indiana Code Section 31-19-9-8(a), consent to

adoption 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 | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 4 of 14 (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.

Petitioner was required to prove by clear and convincing evidence that Father’s

consent was not required under Indiana Code Section 31-19-9-8. M.A.S., 815

N.E.2d at 220.

[11] The trial court found that Petitioner did not prove Father had failed to support

the H.A.F. and that Petitioner did not argue a failure to communicate.

However, the trial court found that Petitioner proved Father was unfit and that

the best interests of H.A.F. would be served if the trial court dispensed with

Father’s consent. The trial court found that Father was unfit based on his

criminal history, lengthy incarceration, drug use, and the heinous nature of his

most recent felony. Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 5 of 14 [12] Father seems to argue that incarceration alone does not justify a finding that he

is unfit. Although we may agree that incarceration alone would not justify a

finding of unfitness, we cannot say that, under the circumstances here, the

evidence leads to but one conclusion and the trial court reached an opposite

conclusion. Petitioner presented evidence that Father will be incarcerated until

H.A.F. is in her forties. Prior to his current incarceration for rape, criminal

deviate conduct, and impersonating a police officer, Father had been

incarcerated for other criminal offenses. He also has a history of drug use.

Given Father’s history, lengthy incarceration, and the nature of his offenses, we

conclude that, under the totality of the circumstances, Petitioner proved by

clear and convincing evidence that Father was unfit and that H.A.F.’s best

interests were served by dispensing with Father’s consent. Consequently, the

trial court did not err when it determined that Father’s consent to the adoption

was not required.

[13] Father also argues that the divesting statute, Indiana Code Section 31-19-15-1,

prevents Petitioner from adopting H.A.F. We need not address that argument

because Father’s consent to the adoption is not required. Consent is the

mechanism by which a party is entitled to say “yea” or “nay.” When consent is

not required the party has no input into the issues surrounding the

consequences if the trial court grants the petition for adoption; they are not his

to raise. However, because the dissent addresses Father’s argument, we will

briefly do so as well.

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 6 of 14 [14] Father and the dissent note that a strict reading of Indiana Code Section 31-19-

15-1 means Petititoner’s adoption of H.A.F. will terminate Mother’s parental

rights, which is contrary to Mother’s intent and to the best interests of H.A.F.

Several cases from this court addressing similar situations have held otherwise.

See In re Adoption of M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003), In re

Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004), In re Adoption of A.M.,

930 N.E.2d 613 (Ind. Ct. App. 2010), and In re Adoption of J.T.A., 988 N.E.2d

1250 (Ind. Ct. App. 2013), trans. denied. The dissent, disagreeing with this line

of case, would reverse the trial court’s determination that Father’s consent to

the adoption is not required, presumably on the basis that H.A.F.’s best

interests would not be served if the petition for adoption were to be granted.

[15] Indiana Code Section 31-19-9-8(a)(11) is a two-step process to determine if the

biological parent’s consent, the father in this case, is required. Because the trial

court found him unfit and found that the best interests of the child would be

served if the court dispensed with that consent, the next step is to consider the

adoption itself using the parameters of Indiana Code Section 31-19-11-1. The

question before the trial court and this court is whether Father’s consent to the

adoption was necessary. In addressing this question, Father can only argue

H.A.F.’s best interests as they relate to him and the requirement of his consent.

The question of the effect of the divesting statute is not yet squarely before this

court. As we have determined that the trial court correctly found Father’s

consent to the adoption was not required, he has no interest with respect to

further proceedings. Cf. Ind. Code § 31-19-5-18 (stating a putative father who

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 7 of 14 fails to timely register waives notice of an adoption proceeding and his consent

to the adoption is “irrevocably implied”). What the divesting statute says and

how it should be applied in considering the petition for adoption can no longer

be raised by Father—assuming the question of preserving Mother’s parental

rights could ever be raised by Father—and he cannot bootstrap that issue onto

the separate issue of whether his consent was required.

Conclusion [16] The trial court properly found that Father’s consent to the adoption was not

required. We affirm.

[17] Affirmed.

Robb, J., concurs.

Altice, J., dissents with separate opinion.

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 8 of 14 IN THE

COURT OF APPEALS OF INDIANA

In Re the Adoption of H.A.F., ) ) A.J.F., ) ) Appellant, ) v. ) No. 71A03-1505-AD-364 ) ) A.D.F., ) ) Appellee. )

Altice, Judge, dissenting.

[18] I respectfully dissent. As properly acknowledged by the majority, a parent’s

consent is not required if a petitioner for adoption proves by clear convincing

evidence that the parent is unfit to be a parent and the best interests of the child

would be served if the court dispensed with the parent’s consent. See I.C. § 31-

19-9-8(a)(11)(A), (B). In its analysis, however, the majority looks only to the

evidence regarding Father’s unfitness and neglects to consider the best interests

of the child in dispensing with Father’s consent. The best interest

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 9 of 14 determination at this stage is separate from, albeit similar to, consideration of

the best interests of the child during subsequent adoption proceedings. I believe

that the determination of whether to dispense with Father’s consent requires

consideration of Father’s argument in assessing the best interests of H.A.F.

Thus, I disagree with the majority insofar as it summarily concludes that

“H.A.F.’s best interests were served by dispensing with Father’s consent.” Slip

op. at 6.

[19] Regarding the child’s best interests, Father argues, and I agree, that a strict

reading of I.C. § 31-19-15-1 would result in not only termination of his parental

rights, but also termination of Mother’s parental rights if the adoption petition

is granted. This result would clearly be contrary to H.A.F.’s best interests and

is unintended by Mother.

[20] I recognize that this court has addressed Father’s argument regarding I.C. § 31-

19-15-1 in several previous cases. In each case, this court has refused to apply a

strict interpretation of the statute. The issue was first addressed in the context

of same-sex partner adoptions. In In re Adoption of M.M.G.C., 785 N.E.2d 267

(Ind. Ct. App. 2003), a same-sex partner sought to adopt her partner’s three

children, who had been previously adopted by the partner. This court held that

the adoption statutes did not specifically address the issue in the case and that

common law permitted “a second parent to adopt a child without divesting the

rights of the first adoptive parent.” M.M.G.C., 785 N.E.2d at 270. The court

noted that: “Allowing a second parent to share legal responsibility for the

financial, spiritual, educational, and emotional well-being of the child in a

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 10 of 14 stable, supportive, and nurturing environment can only be in the best interest of

that child.” Id. at 270-71.

[21] In M.M.G.C., this court expressly did not “reach the question of whether a

second-parent adoption would divest all rights of a biological parent with

respect to the child where the child’s prospective adoptive parent and the child’s

biological parent are not married to each other.” Id. at 270 n.1. Another panel

of this court reached that issue, however, in In re Adoption of K.S.P., 804 N.E.2d

1253 (Ind. Ct. App. 2004). There, a same-sex partner sought to adopt her

partner’s biological children. That panel agreed that a strict literal reading of

I.C. § 31-19-15-1 would seem to result in the divestiture of mother’s parental

rights, “a consequence clearly unintended by the couple.” K.S.P., 804 N.E.2d

at 1257. The K.S.P. court concluded that, in light of the purpose and spirit of

Indiana’s adoption laws, “the legislature could not have intended such a

destructive and absurd result.” Id. They based that decision on the best

interests of the child and the State’s interest in protecting and promoting the

welfare of children by expediting their entry into a suitable, stable family unit.

That panel concluded that where “the prospective adoptive parent and the

biological parent are both in fact acting as parents, Indiana law does not require

a destructive choice between two parents.” Id. at 1260. “Allowing

continuation of the rights of both the biological and adoptive parent, where

compelled by the best interests of the child, is the only rational result.” Id.

[22] Then, in In re Adoption of A.M., 930 N.E.2d 613 (Ind. Ct. App. 2010), the

majority took another leap and allowed a grandfather to adopt his grandchild

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 11 of 14 while the mother (grandfather’s daughter) kept her parental rights. In that case,

the majority noted that the grandfather and mother were both acting as parents

to the child and that the adoption was in the child’s best interests.

Consequently, the majority concluded that the trial court erred by denying the

grandfather’s uncontested petition to adopt the child. A.M., 930 N.E.2d at 621.

[23] Similarly, in In re Adoption of J.T.A., 988 N.E.2d 1250, 1252 (Ind. Ct. App.

2013), trans. denied, a father’s fiancée filed a petition to adopt his child, and the

trial court denied the petition. On appeal, it was held:

[I]t is clear that both Father and Fiancée were acting as parents to the Child, that this was an intra-family adoption, and that neither Fiancée nor Father wished to have Father’s parental rights terminated by the adoption. Mother argues that K.S.P. is not on point because unlike in that case, here Father and Fiancée could have legally married but had simply not yet done so. We disagree, and believe that this is too narrow a reading of our opinion. It is clear from the policy underlying the divesting statute, and the overarching concern for the best interest of the child, that it would be absurd and contrary to the intent of the legislature to divest Father of his parental rights where he would continue to live in a family unit with the Child and parent the Child. Father’s parental rights would not have been terminated had the adoption been granted.

J.T.A., 988 N.E.2d at 1253-54 (footnotes omitted).

[24] I believe the issue presented by Father, upon which our Supreme Court has yet

to speak, should be revisited by this court. There is no statutory exception to

divestiture for unmarried individuals operating as a family unit, and I disagree

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 12 of 14 with case law that goes against the plain language of I.C. § 31-19-15-1 to create

one. The legislature created statutory exceptions to divestiture of a biological

parent’s rights, one of which is when “the adoptive parent of a child is married

to a biological parent.” I.C. § 31-19-15-2; see also I.C. § 31-19-15-1. “The

marriage requirement is not mere surplusage.” In re Infant Girl W., 845 N.E.2d

229, 251 (Ind. Ct. App. 2006) (Najam, J., dissenting), trans. denied; see also King

v. S.B., 837 N.E.2d 965 (Ind. 2005) (Dickson, J., dissenting).

[25] To that end, I agree with Judge Najam’s analysis as expressed in his dissent in

In re Adoption of A.M.,

This case cannot be resolved by resorting to a recent line of cases that has stretched the adoption statutes beyond their plain meaning. Cases interpreting our adoption statutes are not common law cases but judicial interpretations of statutes enacted by our legislature. Our General Assembly has enacted statutes permitting adoptions by single adults, married couples, and stepparents. The parents of an adopted child must be married to each other, whether [as] joint petitioners, or the petitioner is married to a biological or adoptive father or mother of the child.

Adoption of A.M., 930 N.E.2d at 622 (Najam, J., dissenting) (citations omitted).

See also Infant Girl W., 845 N.E.2d 229 (Najam, J., dissenting).

[26] As Judge Najam aptly noted in In re Infant Girl W.:

Children need parents, and adoption is an unselfish act that brings parents together with the children who need them. Adoption should be encouraged, both for the good of the parties and for society at large. But adoption is a privilege, not a right. The terms and conditions of adoption represent policy decisions Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 13 of 14 vested in the legislature. It is the legislature’s prerogative to establish what policies are to be furthered under the adoption statutes, including whether an unmarried couple may adopt.

845 N.E.2d at 251 (Najam, J., dissenting) (footnote omitted).

[27] While I agree that I.C. § 31-19-15-1 would not preclude Petitioner from

adopting H.A.F., the statute dictates that Petitioner’s adoption would terminate

Mother’s parental rights. In order to protect H.A.F.’s best interests, Father’s

concern about application of the divesting statute must be addressed. I would

reverse the trial court’s determination that Father’s consent to the adoption of

H.A.F. was not required.

Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016 Page 14 of 14