MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any                                Jun 27 2018, 9:04 am

court except for the purpose of establishing                                  CLERK
                                                                          Indiana Supreme Court
the defense of res judicata, collateral                                      Court of Appeals
                                                                               and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Douglas S. Walton                                        Karen A. Wyle
Walton Law Office                                        Bloomington, Indiana
Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

M.D.,                                                    June 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A01-1712-AD-2831
        v.                                               Appeal from the Dubois Circuit
                                                         Court
M.B.,                                                    The Honorable Dean A. Sobecki,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         19C01-1507-AD-12



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018              Page 1 of 14
                                          Case Summary
[1]   M.D. (“Father”) appeals the trial court’s order terminating his parental rights

      and permitting M.B. (“Stepfather”) to adopt his daughter, G.J. (“Child”).

      Finding no error, we affirm.



                            Facts and Procedural History
[2]   Child was born out of wedlock to B.J. (“Mother”) and Father in July 2005.

      Father was incarcerated at the time of Child’s birth. Mother filed a petition to

      establish paternity in April 2007, and the trial court issued a paternity order in

      June 2007. According to the order, Father acknowledged under oath that he is

      the father of Child and Mother was given “sole legal and primary physical

      custody” of Child, with Father having parenting-time rights “as agreed to by the

      parties.” Appellee’s App. Vol. II p. 11. In addition, Mother waived any child-

      support arrearage that had accrued from the date of Child’s birth until Father

      entered his work-release program, and the court set a payment schedule for the

      remaining arrearage and future child support.


[3]   When Child was two-and-a-half years old, Mother became involved with

      Stepfather. Mother and Child have lived with Stepfather since approximately

      2010, and Child has called Stepfather “dad” ever since that time. Tr. p. 77.

      Mother and Stepfather married in June 2013.


[4]   Meanwhile, in 2010, Mother filed a petition to modify Father’s parenting time.

      In 2011, the trial court modified Father’s parenting time due to Father being “so

      Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018   Page 2 of 14
      inconsistent in exercising his parenting time, despite being unemployed much

      of the time, that it [was] having a negative impact on [Child].” Appellee’s App.

      Vol. II p. 15. Accordingly, the court ordered that Father’s parenting time

      “should be restricted and supervised by a professional therapist.” Id. The court

      also reduced Father’s child support as a result of his restricted parenting time

      and increased the amount that Father had to pay toward his arrearage.


[5]   In June 2013, the trial court found Father in contempt for failing to pay child

      support and failing to follow the court’s other orders including how to obtain

      parenting time and then appearing in court and misleading the court about his

      counseling. The court ordered Father to serve thirty days in jail, with the first

      two days served on a weekend and the remaining days stayed on the condition

      that he start paying child support by June 21. Id. at 19. According to the order,

      if Father did not start paying child support by June 21, then he would have to

      serve another weekend in jail. Id. It appears that Father never served any time

      in jail for this contempt finding, however. See id. at 9 (CCS entry dated June 27,

      2013, noting that Father “has not reported to the Dubois Co. Security Center

      for the past two weekends”).


[6]   A review hearing was held on October 23, 2014. After the hearing, Mother and

      her attorney were waiting for the elevator when Father approached them and

      asked what he could do to “end this case”. Tr. p. 39. Mother’s attorney—who

      was aware that Mother and Stepfather had been discussing the possibility of

      Stepfather adopting Child—told Father that he could relinquish his parental

      rights to Child and that Mother would forgive his child-support arrearage and

      Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018   Page 3 of 14
      future child-support obligations. Id. Mother’s attorney told Father (who did

      not have an attorney in the paternity case) to come to his office the next day to

      sign the documents. The next day, Father appeared at Mother’s attorney’s

      office to sign the documents; however, the documents were not ready because

      the attorney had underestimated the time needed to prepare them. In the

      meantime, Father “called [the attorney’s] office several times . . . inquiring

      about the status of the documents.” Id. at 40.


[7]   When the documents were finally ready, Father came to Mother’s attorney’s

      office on November 11, 2014. Office staff then provided Father with copies of

      the documents and gave him time to review them. Id. at 43-44. According to

      Mother’s attorney, the following events then transpired:


              After [Father] had sufficient time to read [the documents], he was
              shown into my office, and I met with him for approximately five
              minutes or so. I asked him if he understood the documents, and
              he indicated that he did understand. I asked him if he was being
              threatened or coerced or influenced by anyone to engage in
              signing the documents. He indicated that he . . . was not and
              that he was acting of his own free will and volition. I asked him
              if he wanted to sign the documents. He did.


      Id. at 44. In the presence of Mother’s attorney, Father then signed an “Agreed

      Judgment and Order” that was to be filed in the paternity case and a “Consent

      to Adoption.” Mother’s attorney then notarized the documents. See Ind. Code

      § 31-19-9-2(a) (setting forth the requirements of a consent to adoption, including

      that it be executed in the presence of the trial court, a notary public, or an agent

      of the Department of Child Services or a licensed child-placing agency).

      Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018   Page 4 of 14
      According to the Agreed Judgment and Order, Father’s “parenting time rights

      with [Child] [were] permanently terminated” and his “child support obligation,

      child support arrearage, obligation to reimburse [Mother’s] attorney fees, past

      or future, and all other financial obligations established through this cause

      [were] forgiven and vacated.” Oct. 2, 2015 Ex. 2. The Agreed Judgment and

      Order also provided that Father “shall execute and deliver a consent to

      adoption simultaneously with the execution, delivery and approval of this

      Agreed Order and Judgment.” Id. The Consent to Adoption provided:


              [Father], being first duly swor[n] upon oath, states that he has
              been advised and fully understands that [Stepfather] may seek to
              adopt his natural child [Child]; and, [Father] freely and
              voluntarily consents to the proposed adoption, acting without
              duress, coercion or undue influence of any kind.


      Appellant’s App. Vol. II p. 135. A week later, on November 18, the trial court

      approved the Agreed Judgment and Order and entered judgment accordingly.

      The paternity case was then closed. Appellee’s App. Vol. II p. 9.


[8]   Father was arrested in December 2014, convicted of Level 5 felony intimidation

      in July 2015, and sentenced to six years in the Department of Correction in

      September 2015. As a result, he was incarcerated for the remainder of these

      proceedings.


[9]   On July 9, 2015, in the midst of Father’s criminal proceedings, Stepfather filed

      a petition to adopt Child. The petition included a statement that “Father

      previously acknowledged and consented to the adoption pursuant to the Court


      Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018   Page 5 of 14
       order in [the paternity case] dated November 18, 2014.”1 Appellant’s App. Vol.

       II p. 181. Father, however, informed the trial court during a hearing that he did

       not consent to the adoption of his daughter and wanted an attorney. Tr. p. 5.

       The court appointed Father an attorney and set a hearing to address the validity

       of Father’s November 11, 2014 Consent to Adoption.2 Father’s attorney later

       filed a formal motion to contest the validity of Father’s consent to the adoption.

       See Appellant’s App. Vol. II p. 7 (CCS entry).


[10]   At the June 2016 hearing, the trial court took judicial notice of the proceedings

       in the paternity case. Father then testified that he had never met individually

       with Mother’s attorney and did not recall what documents he signed.

       However, he said that whatever documents he did sign, they were signed

       “under fraud or duress.” Tr. p. 29. Specifically, he claimed that he was

       “treated unfairly” by the judge in the paternity case and that Mother and her

       attorney told him that if he signed the documents, “they . . .wouldn’t put [him]

       in jail [and] [t]he judge wouldn’t find [him] in contempt.” Id. at 27-29. Father

       explained that given the choice of “going to jail and not being able to support

       my other children,” he chose to sign the document. Id. at 32. Mother’s




       1
        Mother misplaced the Consent to Adoption, and it was not filed in the adoption case until March 4, 2016.
       See Appellant’s App. Vol. II p. 7 (CCS entry).
       2
         In light of Father’s claim that he did not consent to the adoption, Stepfather filed a supplemental adoption
       petition, which alternatively alleged that Father’s consent was not required because he failed without
       justifiable cause to communicate significantly with Child when able to do so for a period of at least one year.
       See Appellant’s App. Vol. II p. 164 (citing Ind. Code § 31-19-9-8). Because the trial court found consent, it
       did not reach the issue of whether Father’s consent was required according to Section 31-19-9-8. Because we
       affirm the trial court’s finding that Father validly consented to the adoption, we do not reach the issue either.

       Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018                 Page 6 of 14
       attorney then testified to the events as set forth above. He also testified that he

       did not tell Father that he would go to jail if he didn’t sign the documents,

       because he didn’t “have the authority to send somebody to jail.” Id. at 41. In

       August 2016, the trial court issued an order finding that Father validly

       consented to the adoption:


               (12) The Court heard testimony from [Father] that he did not
               meet individually with [Mother’s attorney] and that he could not
               recall what paperwork he may have signed. [Father] further
               testified that he felt pressured due to his treatment by the Court
               [in the paternity case].


               (13) [Mother’s attorney] testified that [Father] approached him
               about settling matters in [the paternity case]. He further testified
               that [Father] appeared at his office twice, called several times,
               and executed a Consent to Adoption and an Agreed Judgment
               and Order that settled matters in [the paternity case]. [Mother’s
               attorney] stated that [Father] read the documents and that
               [Father] indicated that he was executing the documents without
               duress or coercion.


               (14) The Court finds that [Father] failed to show by clear and
               convincing evidence that his consent was induced through threat
               or coercion.


       Appellant’s App. Vol. II p. 109.


[11]   The adoption proceedings continued, and the final hearing was held in

       September 2017. Father’s criminal records were admitted into evidence. See

       Sept. 29, 2017 Exs. 1-19. In addition, Mother testified about Father’s lack of

       involvement in Child’s life:

       Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018   Page 7 of 14
        [Father] has not had any contact with [Child] since she has been
        approximately six years old. There has not been a card. There
        [have] been no phone calls. There has been nothing. And I’d be
        okay if . . . he couldn’t find us, but I’m out there. He can find me
        any way, shape, or form, and he never has.


Tr. p. 91. Stepfather testified that Child was an “AB student,” very outgoing,

and involved in many activities. Id. at 76. Stepfather said he had been acting as

Child’s father for several years and that he loved Child “as if she was [his] own

natural born daughter” and “just like my two [adult sons]” (he also said his

sons treated Child as if she was their natural sister). Id. at 87. The trial court

issued the adoption decree in November 2017. It found that Father validly

consented to the adoption (as set forth in its August 2016 order) and that

adoption is in the best interests of Child:


        7. [Stepfather] loves [Child]. [He] is capable of rearing [Child]
        and furnishing her with suitable love, support, and education and
        has in fact been doing so since [Child] was 2 1/2 years of age. . . .


        8. [Stepfather] has been acting as [Child’s] father in all respects
        for many years. [Child] is an A-B student and is active in many
        activities . . . . By all accounts, [Child] is a well-adjusted and
        well-behaved child.


                                             *****


        10. [Father] . . . argued that he is going to change his ways and
        wants to be a part of [Child’s] life. [Father] is currently
        incarcerated at the Indiana Department of Correction serving a
        six (6) year sentence for Intimidation, a Level 5 felony. The
        following is an excerpt from the Appellate Court’s October 17,

Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018   Page 8 of 14
               2016 decision in [Father’s] [appeal of his intimidation
               conviction]:


                       Turning to [Father’s] character, his involvement with law
                       enforcement dates back to when he was nine years old.
                       Throughout his life, he has been charged with seventy-
                       seven separate criminal offenses. At least twelve of his
                       arrests have been for physically violent offenses, and he
                       has had probation revoked at least five times. . . . While
                       [Father’s] offense may not be the worst of the worst, his
                       character very nearly is. He evinces no respect for the law
                       or his fellow citizens and is either unable or unwilling to
                       lead a law[-]abiding life. He has had multiple
                       opportunities to turn his life around but has failed or
                       refused to do so.


               The Court finds [Father’s] statement that he will change
               unpersuasive. The evidence presented is that [Father] has not
               been a part of [Child’s] life since she was five years of age.
               [Child] is now twelve years of age. [Father] has not sent [Child]
               a card, present, or letter. [Father’s] criminal history is lengthy.
               The adoption of [Child] by [Stepfather] is in the best interests of
               the child.


       Appellant’s App. Vol. II pp. 23-24.


[12]   Father now appeals.



                                  Discussion and Decision
[13]   Father contends that the trial court erred in finding that he validly consented to

       the adoption and that adoption is in the best interests of Child. When

       reviewing a trial court’s ruling in an adoption proceeding, we will not disturb

       Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018   Page 9 of 14
       that ruling unless the evidence leads to but one conclusion and the trial judge

       reached an opposite conclusion. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind.

       2014). We presume that the trial court’s decision is correct, and we consider

       the evidence in the light most favorable to the decision. Id. We neither reweigh

       the evidence nor assess the credibility of the witnesses. Bell v. A.R.H., 654

       N.E.2d 29, 32 (Ind. Ct. App. 1995).


                                                    I. Consent
[14]   Generally, a petition to adopt a minor child may be granted only if written

       consent has been executed by the biological parents. See Ind. Code § 31-19-9-

       1(a)(2). Once consent is given, it can only be withdrawn by filing a motion with

       the trial court. Ind. Code § 31-19-10-1(c). But there are limits on a party’s

       ability to withdraw a consent to adoption. That is, a consent to adoption may

       be withdrawn “not later than thirty (30) days after consent to adoption is

       signed” provided that the person seeking the withdrawal is acting in the best

       interests of the person sought to be adopted, and consent “may not be

       withdrawn after . . . thirty (30) days after the consent to adoption is signed.”

       Ind. Code § 31-19-10-3(a), (b)(1) (emphasis added).3




       3
         An earlier version of Section 31-19-10-3 did not contain the thirty-day time limit for withdrawing consent.
       It instead provided: “A consent to adoption may not be withdrawn before the entry of the adoption decree”
       unless the court finds that the person seeking the withdrawal is acting in the best interests of the person
       sought to be adopted and the court orders the withdrawal. P.L. 1-1997, § 11 (emphasis added); see also Ind.
       Code § 31-3-1-6(h) (predecessor statute that was repealed). The thirty-day time limit was added to Section
       31-19-10-3 effective July 1, 2003. See P.L. 61-2003, § 18.

       Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018            Page 10 of 14
[15]   Father acknowledges that he failed to withdraw his consent within the thirty-

       day period set forth in Section 31-19-10-3; nevertheless, he claims that his

       consent is invalid because it was obtained by duress and undue influence and

       therefore the court should not have held him to it. See In re Adoption of Hewitt,

       396 N.E.2d 938, 941 (Ind. Ct. App. 1979) (“Voluntariness is distinguishable

       from the issue of withdrawal of consent. If a consent is given involuntarily, the

       issue is not one of withdrawal of the consent but rather the validity of the

       consent itself.”).


[16]   The right to raise one’s child is an essential and basic right more precious than

       property rights and is within the protection of the Fourteenth Amendment to

       the United States Constitution. In re Adoption of M.P.S., 963 N.E.2d 625, 629

       (Ind. Ct. App. 2012). Accordingly, “Indiana’s statutes governing adoptions

       should not be so liberally construed that safeguards erected for the preservation

       of family relationships are destroyed.” Id. (quotation omitted). For a parent’s

       consent to the adoption of their child to be valid, the consent must be a

       voluntary consent to termination of all parental rights. Id. That is, it must be

       “an act of the parent’s own volition, free from duress, fraud, or consent-vitiating

       factors.” Id. Emotion, tensions, and pressure are insufficient to void a consent

       unless they rise to the level of overcoming one’s volition. In re Adoption of

       M.L.L., 810 N.E.2d 1088, 1093 (Ind. Ct. App. 2004).


[17]   Father argues that his consent was obtained through duress and undue

       influence because he was “undoubtedly under a significant amount of stress and

       pressure as he had already been the subject of a contempt citation . . . . He

       Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018   Page 11 of 14
       could not believe that anything different was going to occur when he appeared

       before the paternity trial court in October of 2014.” Appellant’s Br. p. 15.

       Accordingly, Father claims that “the significant emotions, tensions and

       pressures that were being applied to [him] in October and November of 2014

       rose to the level of overcoming his own volition. He could not make any other

       choice than to sign the consent to adoption.” Id.


[18]   Father, however, made these same arguments to the trial court. Mother’s

       attorney largely disputed them, pointing out that Father was the one who

       initiated a discussion with him and Mother on October 23, 2014, about ending

       the paternity case, came to his office the next day to sign the documents, and

       then called his office several times until the documents were finally ready.

       Thus, Father had almost three weeks to think this through before he signed the

       documents on November 11. And contrary to Father’s testimony, Mother’s

       attorney testified that he confirmed with Father that he was signing the

       documents of his own free will and volition and that he did not threaten Father

       with jail time. See also Appellant’s App. Vol. II p. 135 (signed consent setting

       forth that Father “freely and voluntarily consents to the proposed adoption,

       acting without duress, coercion or undue influence”). Based on this evidence,

       the trial court, which was in the best position to observe the demeanor and

       judge the credibility of the witnesses, found that Father failed to prove that his

       consent was induced through threat or coercion and that, therefore, it was valid.

       We cannot say that the evidence presented led only to the conclusion that

       Father’s consent was obtained through duress and undue influence. We


       Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018   Page 12 of 14
       therefore affirm the trial court’s finding that Father validly consented to the

       adoption.4


                                               II. Best Interests
[19]   Father also contends that, even if he validly consented to the adoption, the trial

       court erred in finding that the adoption is in the best interests of Child.

       According to Indiana Code section 31-19-11-1(a), the trial court must find that

       the adoption is in the best interests of the child before issuing an adoption

       decree. 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. In

       re Adoption of M.S., 10 N.E.3d 1272, 1281 (Ind. Ct. App. 2014). 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. Id. Relevant factors include,

       among others, a parent’s historical and current inability to provide a suitable

       environment for the child and the child’s need for permanence and stability. Id.

       at 1281-82.


[20]   In determining that the adoption is in the best interests of Child, the trial court

       found that Stepfather had been a part of Child’s life since she was two-and-a-




       4
        Because we affirm the trial court’s finding that Father validly consented to the adoption, we do not address
       Father’s alternate argument that the trial court erred in finding that Father’s consent was irrevocably implied
       because he failed to timely contest the adoption.

       Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018              Page 13 of 14
       half years old and that he had been acting as her “father in all respects for many

       years.” It found that Child was a good student who was involved in many

       activities and well adjusted. In contrast, it found that Father, who was then in

       prison and had an extensive criminal history, had not been a part of Child’s life

       since she was five years old and had not even sent her a card, present, or letter.

       On appeal, Father does not challenge these findings. Rather, he claims that he

       did not know Mother’s contact information, he tried to see Child but Mother

       would not let him, and that it was the judicial system’s fault for not letting him

       see Child. However, the only evidence he cites in support of these claims is his

       own testimony, which the trial court was free to disbelieve. The trial court did

       not err in determining that adoption is in the best interests of Child.


[21]   Affirmed.


       Pyle, J., and Barnes, Sr. J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A01-1712-AD-2831 | June 27, 2018   Page 14 of 14
