RW v. GB (mem. dec.)

MEMORANDUM DECISION FILED
Mar 20 2017, 10:04 am
Pursuant to Ind. Appellate Rule 65(D),
CLERK
this Memorandum Decision shall not be Indiana Supreme Court
Court of Appeals
regarded as precedent or cited before any and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Julianne L. Fox Craig Goedde
Evansville, Indiana Johnson, Carroll, Norton, Kent &
Goedde, P.C.
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In re Adoption of L.W. (Minor March 20, 2017
Child) Court of Appeals Case No.
82A01-1610-AD-2314
R.W. (Father), Appeal from the Vanderburgh
Appellant-Respondent, Superior Court
The Honorable Renee Ferguson,
v. Magistrate
Trial Court Cause No.
G.B. (Stepfather), 82D04-1506-AD-56
Appellee-Petitioner
Crone, Judge.
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Case Summary
[1] R.W. (“Father”) appeals the trial court’s order granting the petition filed by
G.B. (“Stepfather”) to adopt Father’s biological son, L.W. Father argues that
the trial court erred in finding that his consent to the adoption was not required
based on a reason not alleged in the adoption petition. We hold that Father has
waived this argument and therefore affirm.
Facts and Procedural History
[2] In 2005, L.W. was born to Father and D.B. (“Mother”). In 2010, Father was
convicted of molesting his daughter and received a sixty-year sentence. In
February 2015, Stepfather married Mother. In June 2015, Stepfather filed a
petition to adopt L.W. In an amended petition, Stepfather alleged that Father’s
consent to the adoption was not required pursuant to Indiana Code Section 31-
19-9-8 because, for a period of at least one year, he failed without justifiable
cause to communicate significantly with L.W. when able to do so and
knowingly failed to provide for L.W.’s care and support when able to do so as
required by law or judicial decree.
[3] At the hearing on the petition, Father was represented by counsel and appeared
by telephone from prison. Without objection, Stepfather testified about
Father’s convictions, asked the trial court to take judicial notice of the criminal
proceedings, and provided the court with copies of the chronological case
summaries. Also without objection, Mother testified that Father’s victim was
L.W.’s half sister. The trial court called a bench conference and directed
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counsel’s attention to Indiana Code Section 31-19-9-10, which states in relevant
part that “[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
the filing of a petition for adoption for” certain crimes, including class A felony
child molesting; “(2) the child or the child’s sibling, half-blood sibling, or step-
sibling of the parent’s current marriage 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.” The court noted
that Father had been convicted of and was incarcerated for class A felony child
molesting at the time the petition was filed, that the victim was L.W.’s half-
blood sibling, and that Father had been “on the phone, he’s been given notice
all the way along[.]” Tr. at 40. The court stated,
So I can tell you right now, as soon as we finish Mother’s
testimony, I’m going to be ready to conclude that dispensing with
[Father’s] consent is in the child’s best interest, given the nature
of his crimes against children and the fact that it was [L.W.’s]
half-sister. So I just wanted to let you know, Gentlemen, where
I’m heading. And you most certainly can have time to talk with
your client about that, [Father’s counsel].
Id. Father’s counsel did not object to the court’s stated intentions. The court
allowed counsel to confer privately with Father and recalled Mother to the
stand. Father then testified, and the parties made closing arguments. At the
conclusion of the hearing, the court found that Father’s consent to the adoption
was not required pursuant to Indiana Code Section 31-19-9-10 and that it was
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in L.W.’s best interests to be adopted by Stepfather. The court later issued a
written order to this effect. This appeal ensued.
Discussion and Decision
[4] Father argues that the trial court erred in finding that his consent to the
adoption was not required pursuant to Indiana Code Section 31-19-9-10
because Stepfather did not plead that basis for dispensing with his consent in his
adoption petition. We hold that Father waived this argument by failing to
object at trial. See Linenburg v. Linenburg, 948 N.E.2d 1193, 1197 (Ind. Ct. App.
2011) (“A party may not sit idly by, permit the court to act in a claimed
erroneous manner, and subsequently attempt to take advantage of the alleged
error.”) (citation omitted). Therefore, we affirm.
[5] Affirmed.
Riley, J., and Altice, J., concur.
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