In Re: The Adoption of S.M.S., F v. v. J.S. and A.S. (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 02 2018, 8:39 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT
Kyle D. Gobel
Crawfordsville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE: THE ADOPTION OF August 2, 2018
S.M.S. Court of Appeals Case No.
18A-AD-517
Appeal from the Clinton Circuit
F.V., Court
Appellant-Respondent, The Honorable Bradley K. Mohler,
Judge
v.
Trial Court Cause No.
12C01-1708-AD-11
J.S. and A.S.,
Appellees-Petitioners.
Altice, Judge.
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Case Summary
[1] F.V. (Father) appeals the trial court’s grant of an amended petition to adopt the
minor child S.M.S. (Child) filed by J.S. and A.S. (Grandfather and
Grandmother, respectively – collectively, the Grandparents). Father presents
three issues for our review, which we consolidate and restate as follows:
1. Whether the trial court erred in concluding that Father
impliedly consented to the adoption; and
2. Whether the trial court’s finding that adoption was in the best
interests of Child was clearly erroneous.
[2] We affirm.
Facts & Procedural History
[3] M.S. (Mother) and Father began a romantic relationship in November 2015,
and conceived Child. Father became incarcerated in the Hendricks County Jail
from March to August 2016, and, thereafter, was transferred to the Indiana
Department of Correction (DOC). Child was born on October 4, 2016, while
Father was incarcerated. Father’s earliest possible release date is May 2019.
Father has never met Child.
[4] On January 26, 2017, Mother and Child moved into the Grandparents’ home.
Mother moved out in February 2017, leaving Child with the Grandparents.
[5] The Grandparents filed a petition for the adoption of Child on August 14, 2017,
and, therewith, Mother’s consent to the proposed adoption. The adoption
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petition alleged that paternity had not been established for Child by court
proceeding or by a paternity affidavit. The Grandparents attached to the
petition “[a]n Indiana State Department of Health Putative Father Registry
Affidavit, which state[d] that no putative father is registered and no paternity
determination is on file [for Child].” Appellant’s Appendix Vol. 2 at 6-7. Father
was notified that the petition for adoption had been filed.
[6] On September 1, 2017, Father filed a pro se motion contesting the adoption,
alleging that he was Child’s biological father and that he did not consent to the
1
adoption. On October 16, 2017, the Grandparents filed an amended adoption
petition, alleging (among other things) that, since Child’s birth, Father had not
paid support; due to lack of communication and support, Father had
abandoned Child for longer than six months; Father was “unfit” to parent
Child; and Father’s consent to the adoption was not required. Id. at 24. On
December 18, 2017, the Grandparents filed a motion for summary judgment,
arguing that because Father failed to file a paternity action and register with the
Putative Father Registry within the required time, his consent to the adoption
was not required. The Grandparents asked that summary judgment be granted
on that issue.
[7] On February 2, 2018, the trial court held a hearing on the adoption petition and
the motion for summary judgment. Both Father and the Grandparents
1
On October 26, 2017, the trial court appointed counsel to represent Father.
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attended the hearing, following which the trial court issued an order finding
that Father’s consent to the adoption was irrevocably implied because Father
had failed to register with the Putative Father Registry and had failed to file a
2
paternity action. Id. at 80. The court concluded that adoption was in Child’s
3
best interests and granted the Grandparents’ amended petition for adoption.
4
Father now appeals. Additional facts will be provided as necessary.
Discussion & Decision
[8] 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
judge reached an opposite conclusion. Rust v. Lawson, 714 N.E.2d 769, 771
(Ind. Ct. App. 1999), trans. denied. 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. The decision of the trial
court is presumed to be correct, and it is the appellant’s burden to overcome
that presumption. Id. at 772.
2
The court also found “[t]hat for argument’s sake, assuming [Father] had complied by registering with the
Putative Father Registry and/or had filed a paternity action, his consent is still not required due to his lack of
contact with the child and/or his lack of support for the child” per Ind. Code § 31-19-9-8(2).
3
The trial court did not issue a ruling on the Grandparents’ motion for summary judgment.
4
The Grandparents have not filed an appellees’ brief with our court.
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[9] When, as in this case, the trial court has made findings of fact and conclusions
thereon, we apply a two-tiered standard of review: “we must first determine
whether the evidence supports the findings and second, whether the findings
support the judgment.” In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014).
Factual 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. (internal quotation omitted).
1. Father’s Consent
[10] Father first argues that the trial court erred by finding that his consent to the
adoption was irrevocably implied because he failed to timely register as a
putative father with the Indiana Putative Father Registry. I.C. § 31-19-5-18
governs the waiver of notice rights of unregistered putative fathers. The statute
provides as follows: “A putative father who fails to register within the period
specified by section 12 of this chapter waives notice of an adoption proceeding.
The putative father’s waiver under this section constitutes an irrevocably
implied consent to the child’s adoption.” I.C. § 31-19-5-18. I.C. § 31-19-5-12(a)
sets forth the time period in which a putative father must register, that is, for our
purposes, within thirty days of the child’s birth or by the date on which the
petition to adopt the child is filed, whichever is later.
“[A] putative father whose consent has been implied may not challenge
the adoption or establish paternity.” In re Adoption of J.D.C., 751 N.E.2d 747,
750 (Ind. Ct. App. 2001); I.C. §§ 31-19-9-13, –14.
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[11] Father concedes that he did not meet either of the deadlines set forth in I.C. §
31-19-5-12(a). However, Father implores us to consider favorably his efforts to
contest the adoption. In support of his argument, Father points us to our
opinion in In re Adoption and Paternity of K.A.W., 99 N.E.3d 724 (Ind. Ct. App.
2018), where, according to Father, this court “[took] issue with [I.C. §§ 31-19-5-
18 and 31-19-5-12(a)].” Appellant’s Brief at 15. In K.A.W., putative father filed a
paternity action. Thereafter, the adoptive parents filed a petition to adopt the
child. Putative father timely filed a motion to contest the adoption but failed to
timely register as the putative father. The trial court found that putative father’s
failure to register “‘constitute[d] an irrevocably implied consent’ to the
adoption.” K.A.W., 99 N.E.3d at 725. In affirming the trial court’s decision,
this court explained:
Putative Father makes a compelling argument that the purpose of
the Putative Father Registry is to ensure that putative fathers
have notice if someone is seeking to adopt their child(ren). I.C. §
31-19-5-3. In this case, Putative Father not only had notice, he
was an active participant; first, he took the initiative to file a pro
se paternity action and then, he actively took part in the adoption
proceedings. Here, therefore, there was no true reason that he
had to register. Indeed, it feels as though this outcome is not
only nonsensical, but unjust; it feels as though his action of filing
the paternity cause should have been enough to preserve his right
to object; it feels as though this is the ultimate “gotcha” outcome.
In a perfect world, we would reverse. But this world is not
perfect, and the statute says what it says, which is that the failure
to register in a timely fashion leads to irrevocably implied
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[5]
consent. We are compelled to affirm the trial court given the
plain language of the statute at issue.
Id. at 727.
[12] Here, Father failed to timely register with the Indiana Putative Father Registry.
We, like the court in K.A.W., are compelled to affirm the trial court given the
plain language of I.C. § 31-19-5-12(a). See also I.C. §§ 31-19-9-13, –14
(a putative father whose consent to adoption is implied is not entitled to
challenge either the validity of his implied consent or establish paternity). As
such, the trial court did not err by finding that Father’s consent to the adoption
was irrevocably implied.
2. Best Interests of Child
[13] Father also challenges the trial court’s determination that adoption was in
Child’s best interests. 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). Even if a court determines that a natural parent’s consent is not
required for an adoption, the court must still determine whether adoption is in
the child’s best interests. See I.C. § 31-19-11-1(a)(1). “When reviewing the trial
court’s ruling in an adoption proceeding, we will not disturb that ruling unless
5
We noted the following in footnote 3 in K.A.W.: “Therefore, the takeaway for practitioners (though we
acknowledge that Putative Father instituted his paternity action pro se) is that the best course of action under
circumstances similar to these would be to register with the Putative Father Registry contemporaneously with
– or even before – the filing of a paternity action.” K.A.W.., 99 N.E.3d at 727 n.3.
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the evidence leads to but one conclusion and the trial judge reached an opposite
conclusion.” T.L., 4 N.E.3d at 662.
[14] We note that the adoption statute does not provide guidance for which factors
to consider when determining the best interests of a child in an adoption
proceeding, but we have noted that there are strong similarities between the
adoption statute and the termination of parental rights statute in this respect.
See M.L., 973 N.E.2d at 1223 (holding that the adoption statutes and the
termination statutes provide similar balances between parental rights and the
best interests of the children). In termination cases, we have held that the trial
court is required to look to the totality of the evidence to determine the best
interests of a child. In re I.A., 903 N.E.2d 146, 155 (Ind. Ct. App. 2009).
[15] In support of his argument that adoption by the Grandparents was not in
Child’s best interests, Father points us to his testimony at the adoption hearing,
specifically that, according to Father, he showed “his efforts to communicate
with and support the Child were commensurate with his resources and
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opportunities while in the DOC”; he “contested the proposed adoption and
actively participated in the adoption proceedings”; and he “loved [Child] and . .
. his goal was to have [Child] in his care.” Appellant’s Brief at 20. Father asks us
to also consider his testimony that he “was working on time cuts [to his
6
According to Father, he had “no assets or income with which to provide support for [Child]”; he had
“limited assets to use to send letters and make phone calls”; however, he had “used his limited resources to
send four letters to the Grandparents’ home.” Appellant’s Brief at 20.
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sentence in the DOC], and that he hoped to be released . . . close to [Child’s]
second birthday,” as well as testimony that he was “taking DOC substance
abuse classes and that he intended to continue working on his sobriety upon his
release.” Id. at 19.
[16] Here, however, we find that our resolution of Father’s implied consent issue
disposes of Father’s best interests challenge. As we stated above, a putative
father whose consent has been implied may not challenge the adoption. J.D.C.,
751 N.E.2d at 750; I.C. § 31-19-9-13. Thus, under the circumstances of this
case, Father simply has no standing to raise the best interests argument.
[17] Even assuming that Father can raise the best interests argument, a review of the
record supports the trial court’s determination that the Grandparents’ adoption
of Child was in Child’s best interests. Father currently is incarcerated with an
earliest possible release date of May 20, 2019. Father was incarcerated prior to
Child’s birth, and Child has never met Father. Father has no assets. His only
source of income is the small amount of money his father deposits monthly into
his prison commissary account. Child has lived with the Grandparents since
she was approximately three months old, and the Grandparents have provided
all the support for Child. Father has had almost no contact with Child. At the
adoption hearing, Grandmother testified that Child has bonded with her and
Grandfather, and that she and Grandfather are able to provide for Child
financially. Grandfather testified that he was mentally, physically, and
financially able to care for Child.
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[18] Based upon the totality of the evidence presented during the adoption hearing,
we cannot say that the evidence leads only to the opposite conclusion of that
reached by the trial court. We therefore find that the trial court’s conclusion
that the adoption of Child by the Grandparents was in Child’s best interests was
not clearly erroneous.
[19] Judgment affirmed.
Bailey, J. and Brown, J., concur.
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