                                                                                FILED
                                                                            Apr 20 2018, 9:37 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Joseph Leon Payne                                          Matthew J. McGovern
Payne Law Office, LLC                                      Anderson, Indiana
Austin, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption and                                     April 20, 2018
Paternity of K.A.W.                                        Court of Appeals Case No.
                                                           31A01-1712-AD-2797
J.R.C.,
                                                           Appeal from the Harrison Circuit
Appellant-Respondent,                                      Court
        v.                                                 The Honorable John T. Evans,
                                                           Judge
J.C. and D.C.,                                             Trial Court Cause Nos.
                                                           31C01-1602-AD-5
Appellees-Petitioners                                      31C01-1512-JP-35



Baker, Judge.




Court of Appeals of Indiana | Opinion 31A01-1712-AD-2797 | April 20, 2018                           Page 1 of 8
[1]   J.R.C. (Putative Father) appeals the trial court’s order dismissing his petition to

      establish paternity of K.A.W. (Child) and granting the petition to adopt Child

      that had been filed by J.C. and D.C. (Adoptive Parents). Putative Father

      argues that the trial court erred by finding that his consent to the adoption was

      irrevocably implied and by granting the adoption petition without a statutorily

      required affidavit. Finding no reversible error, we affirm.


                                                      Facts
[2]   Child was born to D.W. (Mother) on April 15, 2014. Putative Father has been

      incarcerated since before Child’s birth. Mother has also been incarcerated

      periodically throughout Child’s life; Child has always lived with Adoptive

      Parents, who are relatives of Mother. On December 15, 2015, Putative Father

      filed a petition to establish paternity; shortly thereafter, he filed a motion for a

      DNA test.


[3]   On February 8, 2016, Adoptive Parents filed a petition to adopt Child. The

      trial court ordered the paternity and adoption causes consolidated on April 19,

      2016. In July 2016, the trial court granted Putative Father’s motion for a DNA

      test. On November 17, 2016, the DNA test report was filed with the court

      indicating a 99.99% probability that Putative Father is Child’s biological father.


[4]   On December 9, 2016, Putative Father filed a motion to contest the adoption.

      Mother consented to the adoption on August 7, 2017. Thereafter, Adoptive

      Parents asked the trial court to find that Putative Father’s consent to the



      Court of Appeals of Indiana | Opinion 31A01-1712-AD-2797 | April 20, 2018     Page 2 of 8
      adoption was irrevocably implied. On August 26, 2017, Putative Father

      registered as a putative father of Child.


[5]   On August 30, 2017, the trial court entered an order staying Putative Father’s

      petition to establish paternity, finding that Putative Father’s consent to the

      adoption was irrevocably implied. The trial court found that Father “has never

      registered as [Child’s] putative father. Thus, he was not registered at the time

      [Adoptive Parents’] petition to adopt [Child] was filed, which is the relevant

      deadline.” Appealed Order p. 2. Further, the failure to timely register with the

      putative father registry “constitutes an irrevocably implied consent” to the

      adoption. Id.


[6]   In the final adoption decree, which was issued on November 7, 2017, the trial

      court found as follows with respect to Putative Father:


              37.      [Putative Father] is incarcerated by the Indiana
                       Department of Correction[] in Branchville, Indiana. He
                       has been in custody for the last three years.


              38.      [Putative Father] has used illegal drugs “off and on” his
                       entire adult life. At the time of his arrest he was found to
                       be operating a methamphetamine “lab” in the [Putative
                       Father’s] home. His most recent charges of possession of
                       methamphetamine arose while he was on probation
                       having been convicted [of] possessing methamphetamine.


              39.      [Putative Father] has never seen [Child] in person.
                       [Putative Father] has never spoken to [Child]. Since this
                       case was initiated, [Putative Father] has sent two cards to


      Court of Appeals of Indiana | Opinion 31A01-1712-AD-2797 | April 20, 2018       Page 3 of 8
                       [Child], a Christmas Card in 2016, and a Birthday Card in
                       2017.


                                                        ***


              43.      [Putative Father] registered with the Indiana Putative
                       Father Registry on or about August, 2017.


                                                        ***


              45.      [Putative Father] failed to register with the Putative Father
                       Registry within the period specified by Indiana Statute.
                       [Putative Father] has waived notice of this adoption
                       proceeding. Therefore, [Putative Father’s] waiver
                       constitutes his irrevocably implied consent to [Adoptive
                       Parents’] adoption of [Child].


      Id. at 10-11. The trial court dismissed Putative Father’s petition to establish

      paternity with prejudice. Putative Father now appeals.


                                    Discussion and Decision
[7]   Our Supreme Court has set forth the standard of review of adoption decrees as

      follows:


              “When reviewing the 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). We presume the trial court’s decision is correct,
              and we consider the evidence in the light most favorable to the
              decision. Id. at 771–72.


      Court of Appeals of Indiana | Opinion 31A01-1712-AD-2797 | April 20, 2018        Page 4 of 8
               When, as in this case, the trial court has made findings of fact
               and conclusions of law, 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.W., 859 N.E.2d 1215, 1217 (Ind.
               Ct. App. 2006); see also Ind. Trial Rule 52(A) (providing that
               where the trial court has made findings of fact and conclusions of
               law, “the court on appeal shall not set aside the findings or
               judgment unless clearly erroneous, and due regard shall be given
               to the opportunity of the trial court to judge the credibility of the
               witnesses.”). 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.” T.W., 859 N.E.2d at 1217.


      In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). As always, we apply a de

      novo standard of review to issues of law, including issues of statutory

      interpretation. E.g., In re Adoption of J.R.O., 87 N.E.3d 37, 42 (Ind. Ct. App.

      2017).


[8]   Putative Father first argues that the trial court erred by finding that his consent

      to the adoption was irrevocably implied because he failed to register as a

      putative father in a timely fashion. Indiana Code section 31-19-5-18 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




      Court of Appeals of Indiana | Opinion 31A01-1712-AD-2797 | April 20, 2018    Page 5 of 8
       putative father’s waiver under this section constitutes an irrevocably implied

       consent to the child’s adoption.”1


[9]    To comply with Indiana Code section 31-19-5-12, Putative Father was required

       to register within thirty days of Child’s birth or by the date on which Adoptive

       Parents filed their petition to adopt Child. I.C. § 31-19-5-12(a).2 It is

       undisputed that Putative Father did not meet either of these deadlines. Instead,

       he did not register as a putative father until Child was over three years old and

       the adoption petition had been pending for eighteen months. As such, the trial

       court did not err by finding that his consent to the adoption was irrevocably

       implied.


[10]   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




       1
         A putative father’s consent to adoption is also irrevocably implied if he fails to file a motion to contest the
       adoption within thirty days of service of notice of the adoption. I.C. § 31-19-9-12(1). Here, Putative Father
       did not file a motion to contest the adoption within that timeframe. He had already, however, filed a petition
       to establish paternity, which our Supreme Court has held is equivalent to filing a motion to contest the
       adoption. In re B.W., 908 N.E.2d 586, 592-94 (Ind. 2009). Therefore, Putative Father’s consent was not
       irrevocably implied for this reason.
       2
        This statute also includes a provision permitting a putative father to register by the date of the filing of a
       petition to terminate the parent-child relationship between the child and the child’s mother. I.C. § 31-19-5-
       12(a)(2)(B). Although Putative Father attempts to invoke this provision, arguing that when Mother
       consented to the adoption her rights were effectively terminated, it is apparent that it does not apply because
       no petition to terminate was filed in this case. And even if it did, Putative Father did not register until after
       Mother consented to the adoption.

       Court of Appeals of Indiana | Opinion 31A01-1712-AD-2797 | April 20, 2018                              Page 6 of 8
       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 consent.3 We are compelled to affirm the

       trial court given the plain language of the statute at issue.


[11]   Next, Putative Father contends that the trial court should not have granted the

       adoption petition because Adoptive Parents did not submit an affidavit from the

       State Department of Health stating whether he had registered as a putative

       father or had filed a petition to establish paternity. Putative Father is correct

       that such an affidavit is required, see I.C. § 31-19-11-1(a)(4), but in this case its

       omission was harmless. Everyone, including Adoptive Parents and the trial

       court, was on notice that Putative Father had filed a petition to establish

       paternity and, in the end, had registered as a putative father. Moreover,

       Putative Father had actual notice of the adoption and was an active participant

       in the proceedings. Consequently, any departure from statutory procedure in

       this regard was harmless.




       3
         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.

       Court of Appeals of Indiana | Opinion 31A01-1712-AD-2797 | April 20, 2018                        Page 7 of 8
[12]   The judgment of the trial court is affirmed.


       Kirsch, J., concurs.
       Bradford, J., concurs in result without an opinion.




       Court of Appeals of Indiana | Opinion 31A01-1712-AD-2797 | April 20, 2018   Page 8 of 8
