In Re the Adoption of H.A.F., A.J.F. v. A.D.F. (mem. dec.) ( 2016 )

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.
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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.
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[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
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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:
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(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.
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[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.
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[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
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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.
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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
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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
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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
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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
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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
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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.
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