In the Matter of the Adoptions of V.B. and S.B. (Minor Children), D.G. (Father) v. D.H. (Adoptive Father) (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Apr 09 2019, 9:53 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Katherine N. Worman E. Lee Veazey
Evansville, Indiana Massey Law Offices, LLC
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Adoptions of April 9, 2019
V.B. and S.B. (Minor Children), Court of Appeals Case No.
18A-AD-2566
D.G. (Father), Appeal from the Vanderburgh
Superior Court
Appellant-Respondent,
The Honorable Brett J. Niemeier,
v. Judge
The Honorable Renee A.
D.H. (Adoptive Father), Ferguson, Magistrate
Appellee-Petitioner. Trial Court Cause Nos.
82D04-1804-AD-71
82D04-1804-AD-76
Robb, Judge.
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Case Summary and Issue
[1] The juvenile court granted a petition by D.H. (“Adoptive Father”), the spouse
of A.H., the biological mother of S.B. and V.B. (collectively, “the Children”), to
adopt the Children, finding the consent of D.G., the Children’s biological
father, was not required. D.G. appeals the juvenile court’s order granting the
petition for adoption, raising one issue for our review, which we restate as
whether the juvenile court erred in concluding D.G.’s consent to the adoption
was not required. Concluding the juvenile court did not err and D.G.’s consent
was not required, we affirm.
Facts and Procedural History
[2] The Children, S.B. and V.B., were born on April 24, 2003, and December 13,
2005, respectively. Twelve years later, on December 19, 2017, D.G. pleaded
guilty to two counts of sexual misconduct with a minor and two counts of
incest, all four Level 4 felonies. D.G. was sentenced on March 1, 2018, to an
aggregate sentence of twelve years with eight years to be executed at the
Indiana Department of Correction and the remaining four years to be served on
probation.
[3] S.B. was the victim of D.G.’s crimes and by the terms of the plea agreement,
D.G. is prohibited from having contact with S.B., he must stay off the property
where S.B. or her family resides, and he must register as a sex offender. D.G.’s
earliest possible release date is September 19, 2023, at which point S.B. will be
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twenty years old and V.B. will be less than two months shy of her eighteenth
birthday. D.G. will then remain on probation for another four years during
which time the no contact order remains in effect.
[4] Adoptive Father filed petitions to adopt the Children on April 16, 2018.
Adoptive Father alleged therein that D.G. had been “convicted of and is
currently in prison for a conviction for [incest] and pursuant to [Indiana Code
section] 31-19-9-10(1)(G) his consent is not required for this adoption petition.”
Appellant’s Amended Appendix, Volume II at 13, 74. A.H. consented to the
adoption, stating that Adoptive Father has “provided financial support,
emotional support, and love” to the Children since 2016. Id. at 16, 84.
[5] D.G. objected to the adoption on June 25 and D.G. was appointed counsel. A
consent hearing was conducted on August 21, and at the close of testimony, the
juvenile court found:
Alright, at this time the Court finds that [D.G.’s] consent is not
required. . . . And the Court must further find that dispensing
with the parent’s consent to adoption is in the child’s best
interest. Given [D.G.’s] propensity for crimes of a sexual nature
and the fact that he continues and will continue for the near
future in the Indiana Department of Correction, and given the
nature of the crime against [S.B.] and its repercussions on [V.B.],
the Court finds that it is in the best interest of the [C]hildren that
they be adopted by [Adoptive Father].
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Transcript, Volume II at 29-30. On September 12, 2018, the juvenile court
entered adoption decrees as well as findings of fact and conclusions of law1 on
the issue of whether D.G.’s consent to the adoption was necessary:
Findings of Fact
3. [D.G.] is the birth father of [V.B. and S.B.], and he does
not consent to this adoption Petition and he filed an
objection to this adoption petition.
***
5. [D.G.] is currently in the Indiana Department of
Correction (IDOC) as a result of pleading guilty in [a
criminal case] where [D.G.] was charged with five counts
of violating IC 35-42-4-9(e) and five counts of IC 35-46-1-
3, all counts against his daughter [S.B.], [V.B.’s] sister.
[D.G.] entered into a plea agreement where he pled guilty
to two counts of IC 35-46-1-3 and two counts of IC 35-42-
4-9(e).
6. According to the [IDOC] website and confirmed by
[D.G.’s] testimony, [D.G.’s] current scheduled release date
is September 19, 2023. The plea agreement also requires
four (4) years of probation and includes a no contact order
for [S.B.] and that he must stay off the property where
[S.B.] or her family reside which includes [V.B.].
1
The juvenile court entered separate Court’s Findings of Fact, Conclusions of Law and Ruling on Whether
Birth Father’s Consent is Required for both S.B. and V.B. See Appealed Order at 4-6; 10-13. With few
exceptions, the two documents are materially identical, and we have therefore combined the two documents
for the sake of brevity.
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7. According to [D.G.’s] own testimony, he also has had
previous a conviction for sex abuse in Illinois around 2005
and a conviction for aggravated battery around 2010.
[D.G.] served time in prison for both convictions.
8. [D.G.] was also arrested in Indiana for failure to register as
a sex offender, but [D.G.] explained in his testimony
because he was already in jail for the aggravated battery
that had resulted in a knife injury to another person that
eventually these charges were dismissed when Indiana
found out [D.G.] was in jail in Illinois.
9. [A.H.] testified that the adoption petition was filed as a
result of her daughter asking if the Petitioner, [Adoptive
Father], could adopt her.
10. [A.H.] testified that [Adoptive Father’s] relationship with
[V.B.] is close and that she believes it is in [V.B.’s] best
interest for [Adoptive Father] to adopt [V.B.].
11. The Court took judicial notice of all Indiana criminal
records for [D.G.].2
Conclusions
1. [Adoptive Father] alleges that [D.G.’s] consent is not
required pursuant to IC 31-19-9-10(1)(G), (2), and (3).
2
The order pertaining to S.B. includes an additional finding, namely: “[S.B.] being 15 years of age signed a
consent to the adoption which is filed with the court.” Appealed Order at 11, ¶ 11.
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2. The burden is with [Adoptive Father] to establish by clear
and convincing evidence that the child’s best interest is
served by the court dispensing with [D.G.’s] consent.
3. [D.G.], biological father to [S.B. and V.B.], has pled guilty
to IC 35-46-1-3 for committing incest against [S.B., V.B.’s
sister,] and a judgment was entered against him.
4. Pursuant to IC 31-19-9-10(1)(G), (2), and (3), this court
finds that the [Adoptive Father] has met his burden by
clear and convincing evidence that: 1) [D.G.’s] consent is
not required pursuant to [D.G.’s] conviction of IC 35-46-1-
3, when the victim is a child of the offender [or the child’s
sister is the victim of the offender], and 2) the court
determines it is in the child’s best interest to dispense with
[D.G.’s] consent.
Appealed Order at 4-6; 10-13. D.G. now appeals.
Discussion and Decision
I. Standard of Review
[6] We review the entry of an adoption decree by considering the evidence most
favorable to the petitioner and the reasonable inferences which can be drawn
therefrom to determine whether sufficient evidence exists to sustain the juvenile
court’s decision. Matter of Adoption of C.J., 71 N.E.3d 436, 442 (Ind. Ct. App.
2017). We will overturn the juvenile court’s decision only when the evidence
leads to one conclusion and the juvenile court reached the opposite conclusion.
In re Adoption of S.O., 56 N.E.3d 77, 80 (Ind. Ct. App. 2016). “The decision of
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the juvenile court is presumed to be correct, and it is the appellant’s burden to
overcome that presumption.” K.S. v. D.S., 64 N.E.3d 1209, 1214 (Ind. Ct. App.
2016).
[7] Moreover, where, as here, the juvenile court enters specific findings of fact and
conclusions thereon, we apply a two-tiered standard of review: we first
determine whether the evidence supports the findings and second, whether the
findings support the judgment. In re the Adoption of T.W., 859 N.E.2d 1215,
1217 (Ind. Ct. App. 2006). “The [juvenile] court’s findings are clearly
erroneous if the record lacks any evidence or reasonable inferences to support
them [and] [a] judgment is clearly erroneous when it is unsupported by the
findings of fact and the conclusions relying on those findings.” Id.II. Best Interests of the Children
[8] Pursuant to Indiana Code section 31-19-11-1(a), a juvenile court shall grant a
petition for adoption if the adoption is in the child’s best interests, the petitioner
is sufficiently capable of rearing and supporting the child, and proper consent, if
required, has been given. Indiana Code section 31-19-9-10 provides:
A court shall determine that consent to adoption is not required
from a parent if:
(1) The parent is convicted of and incarcerated at the time
of filing a petition for adoption for:
***
(G) incest (IC 35-46-1-3) as a:
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***
(ii) Level 4 felony, for a crime committed
after June 30, 2014;
***
(2) the child or child’s sibling . . . is the victim of the
offense; and
(3) after notice to the parent and a hearing, the court
determines that dispensing with the parent’s consent to
adoption is in the child’s best interests.
[9] Here, it is uncontested that D.G. was convicted of incest as a Level 4 felony,
D.G. was incarcerated at the time the petitions for adoption were filed, S.B.
was the victim of the offense, and V.B. was S.B.’s sibling. The only remaining
question to determine whether D.G.’s consent to the adoption was required,
therefore, is whether dispensing with D.G.’s consent was in the Children’s best
interests and D.G. now “challenges the [juvenile court’s] determination that
dispensing with [his] consent to the adoption is in the [Children’s] best
interest.” Appellant’s Brief at 8.
[10] Notably however, where a petitioner seeks a determination that a parent’s
consent to an adoption is not required, a juvenile court is required to conduct
two, separate evaluations of the child’s best interests. First, as discussed above,
the juvenile court must determine that dispensing with the parent’s consent to
the adoption is in the child’s best interests. See Ind. Code § 31-19-11-10(3).
Then, having concluded the parent’s consent to the adoption is not required,
“the court must still determine whether adoption is in the child’s best interests.”
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In re Adoption of M.S., 10 N.E.3d 1272, 1281 (Ind. Ct. App. 2014) (citing Ind.
Code § 31-19-11-1(a)(1)).
[11] Despite framing the issue as a challenge to the juvenile court’s finding that
dispensing with his consent to the adoption was not in the Children’s best
interests, D.G. fails to advance such an argument. Indiana Appellate Rule
46(A)(8)(a) provides that the argument section of the appellant's brief must
“contain the contentions of the appellant on the issues presented, supported by
cogent reasoning[,]” along with citations to the authorities, statutes, and parts
of the record relied upon, and a clear showing of how the issues and
contentions in support thereof relate to the particular facts under review.
Because D.G. has failed to do so, the argument has been waived. See, e.g., Reed
v. Reid, 980 N.E.2d 277, 297 (Ind. 2012) (“Failure to comply with this rule
results in waiver of the argument on appeal.”).
[12] Instead, D.G. argues that A.H.’s behavior is “also detrimental to the Children’s
mental development[,]” that A.H. has been married several times previously,
and that A.H. had only been married to Adoptive Father for “three . . . months
at the time the adoption petitions were filed[.]” Appellant’s Br. at 9. His
underlying concern, he explains, is that “the marriage to [Adoptive Father]
[will] not last,” and “the number of ‘dads’ that [have] been in the Children’s
lives.” Id. We therefore view D.G.’s argument as a challenge to the juvenile
court’s conclusion that adoption was in the Children’s best interests pursuant to
Indiana Code section 31-19-11-1(a)(1), not whether dispensing with his consent
was in the Children’s best interests pursuant to Indiana Code section 31-19-9-
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10(3). Regardless of which conclusion D.G. is challenging, however, we find
his arguments unpersuasive.
[13] The primary concern in every adoption proceeding is the best interests of the
child. In re Adoption of M.L., 973 N.E.2d 1216, 1224 (Ind. Ct. App. 2012).
Although “[t]he adoption statute does not provide guidance for which factors to
consider when determining the best interests of a child in an adoption
proceeding . . . we have noted that there are strong similarities between the
adoption statute and the termination of parental rights statute in this respect.”
In re Adoption of M.S., 10 N.E.3d at 1280. In termination cases, we have held
the juvenile court is required to look to the totality of the evidence to determine
the best interests of a child. Id. Relevant factors include a parent’s historical
and current inability to provide a suitable environment for the child as well as
the child’s need for permanency and stability. Id.
[14] Here, the juvenile court concluded adoption was in the Children’s best interests,
finding that Adoptive Father had a close relationship with the Children and that
the Children had asked to be adopted by Adoptive Father. A.H. testified
“[Adoptive Father] takes amazing care of the kids. He’s a completely different
father to ‘em [sic] than anybody that they’ve ever had in their life. He cares for
them. They adore him.” Tr., Vol. II at 27. Moreover, D.G. was incarcerated
at the filing of the adoption petitions and he will remain incarcerated until only
a few months before the youngest child’s eighteenth birthday. Even then, a no
contact order will prohibit D.G. from contacting the Children for an additional
four years while he serves the remainder of his sentence on probation.
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Adoption clearly serves the Children’s need for permanency and stability.
Finally, there is no question that D.G. has negatively impacted the Children’s
mental and emotional development and D.G. has failed to offer any reason to
suspect this will change. We therefore conclude the record supports the
juvenile court’s conclusion that D.G.’s consent to the adoption of the Children
was not required and adoption of the Children by Adoptive Father was in the
Children’s best interests.
Conclusion
[15] The juvenile court did not err in granting the adoption over D.G.’s objection
because D.G.’s consent was not required. Accordingly, the judgment of the
juvenile court is affirmed.
[16] Affirmed.
Baker, J., and Najam, J., concur.
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