In Re the Adoption of R.A.F., J.H. and W.N. v. Indiana Department of Child Services and D.F. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 19, 2018
• Docket: 49A02-1711-AD-2568
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 19 2018, 10:03 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANTS ATTORNEYS FOR APPELLEES Peter A. Kenny Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Robert J. Henke Deputy Attorney General Indianapolis, Indiana Natalie N. Chavis Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In Re the Adoption of R.A.F. June 19, 2018

J.H. and W.N., Court of Appeals Case No. 49A02-1711-AD-2568 Appellants-Petitioners, Appeal from the Marion Superior v. Court The Honorable Steven R. Indiana Department of Child Eichholtz, Judge Services, Trial Court Cause No. 49D08-1511-AD-36578 Appellee-Intervenor,

and

D.F.,

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018 Page 1 of 9 Appellee-Cross Petitioner.

Riley, Judge.

STATEMENT OF THE CASE [1] Appellants-Petitioners, J.H. and W.N. (Maternal Grandparents), appeal the

trial court’s denial of their petition to adopt R.A.F. (Child).

[2] We affirm.

ISSUE [3] Maternal Grandparents present us with three issues, which we consolidate and

restate as the following single issue: Whether the consent of the Department of

Child Services (DCS) was irrevocably implied when it failed to contest

Maternal Grandparents’ petition to adopt the Child within thirty days of being

served with the notice of Maternal Grandparents’ petition.

FACTS AND PROCEDURAL HISTORY [4] On October 9, 2013, DCS received a report that the Child’s family “home was

very dirty, smelled, dirty clothes, and dirty dishes everywhere. The report

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018 Page 2 of 9 stated there are bed bugs crawling over the home.” (Transcript Vol. IV, Exh.

1). Additionally, Child’s mother (Mother) had a warrant for a probation

violation for a Class D felony theft. On February 18, 2014, the Child, born on

March 29, 2013, was adjudicated a child in need of services (CHINS) after

Mother admitted to the allegations and the Child’s father (Father) waived the

factfinding. The dispositional decree was issued on March 18, 2014. By

October 2014, the Child’s parents were out of compliance with their court-

ordered services and had failed to address their respective substance abuse

issues. Due to the parents’ noncompliance, DCS requested the trial court to

change the Child’s permanency plan from reunification to adoption, with the

plan being for Appellee-Cross-Petitioner, D.F. (Paternal Grandmother) to adopt

the Child, who had been living with Paternal Grandmother since November

2013 when she was approximately eight months old.

[5] On November 5, 2015, Maternal Grandparents filed their verified petition to

adopt the Child. Attached to their petition were parental consents, executed by

both Mother and Father. Maternal Grandparents had adopted Child’s older

biological sibling in 2012. On January 5, 2016, Paternal Grandmother filed a

cross-petition for adoption of the Child. Both DCS and the Child’s Guardian

Ad Litem supported Paternal Grandmother’s decision to adopt.

[6] On March 14, 2016, Maternal Grandparents filed a petition “For

Determination that the Consent of the [DCS] is Irrevocably Implied without

further Court Action.” (Appellants’ App. Vol. II, p. 18). In their petition,

Maternal Grandparents alleged that if DCS wished to contest Maternal

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018 Page 3 of 9 Grandparents’ petition to adopt, DCS was statutorily required to file a motion

to contest their petition within thirty days of being served with Maternal

Grandparents’ petition. Failing to file a motion to contest, DCS’s consent was

“irrevocably implied without further court action.” (Appellants’ App. Vol. II,

p. 19). On October 4, 2016, the trial court conducted a hearing on Maternal

Grandparents’ petition and, at the end of the hearing, denied the petition. On

November 30, 2016, Maternal Grandparents filed a motion to reconsider the

trial court’s denial of their petition, which the trial court denied on December

13, 2016. On January 17, 2017, Maternal Grandparents filed a motion

requesting certification for interlocutory appeal of the trial court’s denial of their

motion to reconsider. The trial court denied the certification request the

following day.

[7] On August 1, 2017, the trial court conducted an adoption hearing to determine

whether DCS’s consent to adopt the Child was mandated for Maternal

Grandparents’ adoption petition to go forward. After receiving evidence, the

trial court concluded

The [c]ourt having considered the evidence presented [on] this issue, finds that the consent of DCS is required to go forward with the [p]etition for [a]doption. Therefore, we will not go forward with the [p]etition for [a]doption that [Maternal Grandparents] have filed today.

(Tr. Vol. II, pp. 41-42). On the same date, the trial court also heard evidence on

whether the parents’ consents were required for Paternal Grandmother’s

petition for adoption and concluded that “the consent of the parents is not

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018 Page 4 of 9 required and further finds that the parents are unfit.” (Tr. Vol. II, p. 57). On

October 18, 2017, the trial court entered its written Order denying Maternal

Grandparents’ petition to adopt the Child.

[8] Maternal Grandparents now appeal. Additional facts will be provided if

necessary.

DISCUSSION AND DECISION [9] Maternal Grandparents contend that the trial court erred in denying its petition

for adoption of the Child. On appeal, we will not disturb the trial court’s

decision in an adoption proceeding unless the evidence leads only to a

conclusion opposite that reached by the trial court. In re Adoption of J.T.A., 988

N.E.2d 1250, 1252 (Ind. Ct. App. 2013), reh’g denied, trans. denied. We will not

reweigh the evidence. Id. Rather, we 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

evidence. Id.

[10] Relying on Indiana Code section 31-19-9-8(a)(10), 1 Maternal Grandparents

assert that DCS’s consent was not required to adopt the Child and therefore,

1 Indiana Code section 31-19-9-8(a)(10) provides that “Consent to adoption, which may be required under section 1 of this chapter, is not required from any of the following: . . . (10) A legal guardian or lawful custodian of the person to be adopted who has failed to consent to the adoption for reasons found by the court not to be in the best interests of the child.”

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018 Page 5 of 9 pursuant to Indiana Code section 31-19-4.5-2, 2 DCS must receive notice of the

petition to adopt. Consequently, in accordance with Indiana Code 31-19-10-

1(b) “[a] person contesting an adoption must file a motion to contest the

adoption with the court not later than thirty (30) days after service of notice of

the pending adoption.” As DCS failed to file the required motion to contest,

Maternal Grandparents maintain that DCS can now no longer object to their

petition to adopt the Child because Indiana Code Section 31-19-9-18 specifies

that

(a) The consent of the person who is served with notice under [I.C. §] 31-19-4.5 to adoption is irrevocably implied without further court action if the person:

(1) Fails to file a motion to contest the adoption as required under [I.C. §] 31-19-10 not later than thirty (30) days after service of notice under [I.C. §] 31-19-4.5

[11] Although a novel theory, Maternal Grandparents’ interpretation starts from the

faulty premise that the DCS should be considered a person under the Statute.

Under the statutory definitions applicable to Indiana Chapter 31-19, which

comprises Indiana’s Adoption Law, the DCS is referred to as the

“Department.” See I.C. § 31-9-2-38.5. While the DCS could arguably fit the

definition of “Person” under I.C. § 31-9-2-89, this definition is only applicable

2 Indiana Code section 31-19-4.5-2 states “[] if a petition for adoption alleges that consent to adoption is not required under [I.C. § 31-19-9-8, notice of the adoption must be given to the person from whom consent is allegedly not required under [I.C. §] 31-19-9-8.”

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018 Page 6 of 9 to Indiana Code Chapters 31-19-19 & -25, which are not implicated in the issue

before us. Moreover, Maternal Grandparents’ reliance on I.C. § 31-19-4.5-2 is

misplaced as this Chapter applies to “Other Persons Entitled to Notice of

Adoption” and more specifically to fathers who have abandoned, failed to

support, or failed to communicate with a child and to certain grandparents. See

I.C. § 31-19-4.5-1.

[12] Furthermore, recent revisions to I.C. § 31-19-9-18, clarify that the ‘irrevocably

implied’ provisions of the statute do not apply to the DCS:

(a) This section [When implied consent to adoption irrevocable] does not apply to the consent of an agency or local office that is served with notice under [I.C. §] 31-19-4.5 and has lawful custody of a child whose adoption is being sought.

[13] Turning to the provisions of the adoption statute, the statute itself clearly

expresses that when the child is a ward of DCS, “a petition to adopt [the child]

may be granted only if written consent to adoption has been executed” by the

“local office having lawful custody of the child whose adoption is being

sought.” I.C. § 31-19-9-1. Accordingly, as the Child had been adjudicated a

CHINS, she was under the custody of DCS and its consent should have been

sought.

[14] In In re Adoption of S.A., 918 N.E.2d 736, 742 (Ind. Ct. App. 2009), trans. denied

(emphasis added), we noted that “[a]lthough consent is required from the agency

having lawful custody of the child whose adoption is sought, consent is not

required if the legal guardian or lawful custodian has failed to consent for

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018 Page 7 of 9 reasons found by the court not to be in the best interests of the child.” See also

I.C. § 31-19-9-8(a)(10). However, while DCS’s consent is required during the

adoption proceedings, DCS is not granted with the unbridled discretion to

refuse consent. As we observed in Stout v. Tippecanoe Co. Dep’t. of Pub. Welfare,

395 N.E.2d 444, 448 (Ind. Ct. App. 1979):

When parental rights are terminated, the [DCS], as custodian of the adoptive child, occupies an important role in the adoption process. The [DCS] becomes in loco parentis to its ward in order to find a suitable adoptive home, and by its expertise, aid the trial court in determining the child’s best interest. The ultimate decision as to the child’s best interest, however, rests with the trial court. We therefore hold the [DCS’s] power to withhold consent to adoption, regardless of the means by which the [DCS] obtained custody, is qualified by [I.C. §] 31-3-1-6(g), allowing the trial court to dispense with the consent of a guardian or custodian.

Therefore, where the DCS refuses or withholds its consent to a proposed

adoption, the trial court must determine whether the DCS’s denial or

withholding is in the child’s best interests. See id. At no point, however, can

DCS’s consent be irrevocably implied.

[15] In the cause before us, DCS consented to Paternal Grandmother’s adoption

petition and refused to consent to Maternal Grandparents’ petition. Upon

review of the competing adoption petitions, the trial court concluded that

DCS’s refusal to consent to Maternal Grandparents’ petition was in the Child’s

best interest, and as such ruled that their adoption petition could not move

forward. We will not disturb the trial court’s ruling.

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018 Page 8 of 9 CONCLUSION [16] Based on the foregoing, we hold that the trial court did not err in denying

Maternal Grandparents’ petition to adopt Child.

[17] Affirmed.

[18] May, J. and Mathias, J. concur

Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018 Page 9 of 9