MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D), this                              Jun 27 2019, 7:08 am
Memorandum Decision shall not be regarded as
                                                                                 CLERK
precedent or cited before any court except for the purpose                   Indiana Supreme Court
                                                                                Court of Appeals
of establishing the defense of res judicata, collateral                           and Tax Court
estoppel, or the law of the case.



ATTORNEYS FOR APPELLANTS                                     ATTORNEYS FOR APPELLEES
Kendra G. Gjerdingen                                         Curtis T. Hill, Jr.
Mallor Grodner, LLP                                          Attorney General of Indiana
Bloomington, Indiana
                                                             Robert J. Henke
Frederick A. Turner                                          Deputy Attorney General
Bloomington, Indiana                                         Indianapolis, Indiana
                                                             Kara Reagan
                                                             Matthew T. Schulz
                                                             Schulz Reagan, LLC
                                                             Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

J.P. and J.P.,                                               June 27, 2019

Appellants-Respondents,                                      Court of Appeals Case No.
                                                             19A-AD-93
        v.                                                   Appeal from the Monroe Circuit
                                                             Court

J.M and S.M.,                                                The Honorable Stephen R. Galvin,
                                                             Judge
Appellees-Petitioners,                                       Trial Court Cause No.
and                                                          53C07-1806-AD-69 & 53C07-1806-
                                                             AD-70
The Indiana Department of Child
Services,

Appellee-Intervenor.




Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019                          Page 1 of 20
Riley, Judge.


                          STATEMENT OF THE CASE
Appellants-Respondents, J.P. (Mother) and J.P. (Father) (collectively,

Biological Parents), appeal the trial court’s denial of their request to withdraw

their respective consents to the adoption of J.L.P. and A.A.P. in favor of the

Appellees-Petitioners, J.M. and S.M. (collectively, Adoptive Parents).


We affirm.


                                             ISSUES
The Biological Parents collectively present eight issues on appeal, which we

consolidate and restate as the following two issues:


    (1) Whether the trial court erred by denying the Biological Parents’ motion

        to withdraw their respective consents to the adoption of J.L.P. and

        A.A.P. in favor of the Adoptive Parents; and


    (2) Whether the Biological Parents were denied due process in the

        underlying proceeding.


                FACTS AND PROCEDURAL HISTORY
The Biological Parents together have thirteen children, including J.L.P. and

A.A.P., born in May 2014, and March 2017, respectively. In 2011, prior to the

birth of the J.L.P. and A.A.P., Father battered Mother and threatened to kill

her. Father was arrested for intimidation and battery. When the Greene


Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 2 of 20
County Department of Child Services (DCS) investigated the incident, Mother

reported that Father had choked and “battered her many times over the past

several years.” (Appellant’s Amended Joint App. Vol. II, p. 17). Mother

further alleged that her minor children had witnessed the violence and also seen

Father point a “firearm” at her “many times.” (Appellants’ Amended Joint

App. Vol. II, p. 17).


Through several orders in Cause Number 28C01-1108-JC-22 through 30, Father

was removed from the home. Thereafter, DCS created a safety plan for the

children. Mother did not comply with the safety plan, and on August 5, 2011,

the children were removed from the home. At a dispositional hearing held on

September 21, 2011, eight children who were under the care of the Biological

Parents were found to be Children in Need of Services (CHINS). The

Biological Parents were then ordered to participate in services.


On February 8, 2012, the Biological Parents’ eight children were placed with

Mother for a trial home visit, but Father was not allowed to have any

unsupervised contact with the children. By the fall of 2012, Father had

successfully completed the Intensive Outpatient Program (IOP) and an anger

management program. Also, the Biological Parents had engaged in joint

therapy. In August 2012, the CHINS cases filed in Greene County were

dismissed. The family was then living in Monroe County.


On June 5, 2013, the Monroe County DCS received a report alleging that the

Biological Parents were manufacturing methamphetamine and that domestic


Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 3 of 20
violence was occurring in their home. DCS visited the Biological Parents’

residence following that report. During the visit, DCS observed that the

Biological Parents’ five-year-old daughter had dry “fecal matter” in her

underwear. (Appellants’ Joint App. Vol. II, p. 76). Also, the children “smelled

of urine.” (Appellants’ Joint App. Vol. II, p. 77). When DCS interviewed

Father, Father’s “pupils were dilated. He rocked back and forth. He was

fidgeting and sweating. He could not put a clear sentence together.”

(Appellants’ Joint App. Vol. II, p. 76). Father was opposed to a drug screen,

but the next day, he submitted to one and he tested positive for Hydrocodone.


Under Cause Numbers 53C07-l306-JC-307 through 315, CHINS petitions were

filed, and a total of eight children who were in the care of the Biological Parents

were removed from the home. Following a fact-finding hearing held in August

2013, the trial court declared the eight minor children as CHINS. The

Biological Parents were ordered to participate in services, but neither parent

engaged in the offered services until October 2013. On March 20, 2014, the

trial court found that the Biological Parents were not regularly visiting with the

children, neither parent had completed a mental health or substance abuse

evaluation, or participated in individual or family therapy, and had generally

failed to provide drug screens.


In May 2014, Mother gave birth to J.L.P. At a permanency hearing held on

June 2, 2014, the trial court noted some progress with the Biological Parents’

participation with the offered services. By September 2014, the Biological

Parents were compliant with the offered services and DCS began introducing

Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 4 of 20
the children back into the Biological Parents’ home. On April 20, 2015, the

CHINS cases filed in Monroe County were dismissed.


On March 19, 2017, A.A.P. was born. At birth, A.A.P. was observed to suffer

from withdrawal symptoms. “Her Finnigan score, which is used to describe the

level of withdrawal symptoms, was between a 7 and 10 on a scale of 1 to 10.

[A.A.P.’s] meconium was positive for methamphetamine, amphetamine, and

hydrocodone.” (Appellants’ Amended Joint App. Vol. II, p. 20). Mother

admitted that she had used Father’s Suboxone, a pain prescription drug, during

her pregnancy. Mother slept the entire time while in the hospital and she could

not properly care for A.A.P.


On March 23, 2017, DCS visited the Biological Parents’ home. Mother was

still in the hospital with A.A.P. who was in neonatal intensive care unit

(NICU). Father aggressively answered the door while stumbling. Father

appeared to be impaired, was wearing “two different shoes on and knee brace

around his calf.” (Appellants’ Amended Joint App. Vol. II, p. 20). DCS

observed that the Biological Parents’ home was in a deplorable state. The home

was dirty and cluttered, it was littered with cigarette butts, and the kitchen was

unsanitary with dirty dishes and spoilt food. DCS noted that the children had

not eaten all day, and they “smelled bad.” (Appellants’ Amended Joint App.

Vol. II, p. 21). Some children were dressed in dirty clothes, and some were

dressed in attires that were not appropriate for the winter months.




Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 5 of 20
The following day, March 24, 2017, through several cause numbers, CHINS

petitions for the Biological Parents’ nine children, including J.L.P. and A.A.P.,

were filed. The children were subsequently removed from the Biological

Parents’ home. J.L.P. spent ten days in a foster home and was then placed with

the Adoptive Parents. A.A.P. spent three weeks in NICU and was then placed

with the Adoptive Parents after being discharged from the hospital.


On June 8, 2017, through a dispositional order, the Biological Parents were

ordered to participate in services including substance abuse treatment, therapy,

home based case management, random drug screens, and supervised parenting

time. At a periodic review held on September 18, 2017, the trial court noted

that the Biological Parents had failed to appear for drug screens and were not

regularly visiting with the children. At another review hearing in December

2017, the Biological Parents were noncompliant with the offered services and

had failed to visit the children.


On December 28, 2017, DCS filed the petitions to terminate the Biological

Parents’ parental rights (TPR) to each of their nine minor children. On March

19, 2018, the trial court held a permanency hearing for the TPR proceedings.

Following that hearing, and concurrent with the permanency plan in the TPR

proceedings, the trial court issued an order approving the permanency plan of

adoption.


On June 11, 2018, the trial court conducted a factfinding hearing for the

adoption and TPR. The parties appeared with their court appointed counsels.


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Mother was then expecting her fourteenth child. At some point during the

hearing, the trial court allowed the parties to separately consult with their

attorneys on how to proceed at the hearing. After two hours of consultation,

the trial court resumed the hearing. The Biological Parents then presented

signed consents for the adoption of J.L.P. and A.A.P. The record shows that

DCS “was prepared to proceed with the termination hearing” had the parents

not signed the consents. (Appellants’ Amended Joint App. Vol. II, p. 80).


On June 26, 2018, under Cause Numbers 53C07-1806-AD-69 and 70, the

Adoptive Parents filed verified petitions to adopt J.L.P. and A.A.P., and the

Biological Parents’ signed consents were attached to the petitions. On July 3,

2018, the Biological Parents filed timely motions to withdraw their consents.

On July 13, 2018, the Adoptive Parents filed an objection to the withdrawal of

the Biological Parents’ consents. On October 31, 2018, DCS requested to

intervene in the adoption cases, and their request was granted.


On November 12, 2018, the trial court held an evidentiary hearing on the

Biological Parents’ motion to withdraw their respective consents to J.L.P.’s and

A.A.P.’s adoption by the Adoptive Parents. The Biological Parents, Adoptive

Parents, and the court-appointed counsels, who represented Mother and Father

in the CHINS cases testified. Subsequently, on December 13, 2018, the trial

court issued an Order denying the Biological Parents’ request to withdraw their

consents and it entered the following pertinent findings of fact and conclusions

thereon:



Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 7 of 20
                                       Findings of Facts


        26. On July 3, 2018, [The Biological Parents] filed
        correspondence which the [c]ourt construed as a request to
        withdraw their consent for [J.L.P. and A.A.P.] to be adopted.


        ****


        28. On November 13, 2018, a hearing was held on the
        [Biological Parents’] request to withdraw their consent to the
        adoption of [J.L.P. and A.A.P.]


        29. [Father] admits that he signed the consents for [J.L.P. and
        A.A.P.] to be adopted on June 11, 2018. However, he testified
        that he was told that if he did not sign he would not be allowed
        to see his children and that his unborn child would be taken at
        birth. [Father] testified that he did not read the documents and
        that he was not told that he was signing away his parental rights.
        He testified that he “just got pissed off and signed the paper.” He
        alleges that he was coerced into signing by his attorney. [Father]
        is not a credible witness. His testimony is not truthful.


        30. Attorney Jason Meredith [(Attorney Meredith)] represented
        [Father] in the CHINS cases and the termination cases.
        [Attorney] Meredith testified that [Father] understood what he
        was signing. There was no coercion or duress. [Attorney]
        Meredith is a credible witness.


        31. [Mother] testified that she did not understand what she was
        signing. She also testified that she was told if she did not sign,
        she would not be allowed to see the children and her unborn
        child would be taken away at birth. She testified that she did not
        review the consent to the adoption before signing. [Mother] is
        not a credible witness. Her testimony is not truthful.

Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 8 of 20
        32. [Mother] was represented by attorney Kara Hancuff
        [(Attorney Hancuff)] in the CHINS cases and the termination
        cases. [Attorney] Hancuff testified that she explained the
        consents to adoption in detail to [Mother]. She spent at least two
        hours explaining the document to [Mother] on the day of the
        termination hearing. She did not force [Mother] into signing.
        She did not threaten [Mother]. [Attorney] Hancuff testified that
        [Mother] understood what she was signing. [Attorney] Hancuff
        observed [Attorney] Meredith reading the consent form to
        [Father]. [Father] corrected [Attorney] Meredith on the date of
        birth on one of the children. [Attorney Hancuff] is a credible
        witness.


        33. [Biological Parents] recently began to participate in services.


        34. [Mother] now has a prescription for Suboxone. She has
        begun to participate in drug screens which are positive for
        Suboxone. However, she missed a drug screen two weeks ago.
        She states that she missed the screen because she did not receive
        a call from the screener. As previously noted, [Mother] is not a
        credible witness. [Mother] has not participated in IOP. She
        states that she does not want to participate in a group setting.
        She believes that IOP would be detrimental to her recovery.


        35. [Father] participated in 2 of 4 Recovery Process sessions in
        October. [Father] is testing positive for Suboxone. He claims to
        have a prescription. He did not produce this alleged prescription.
        As previously noted, [Father] is not a credible witness.


        36. [The Biological Parents] are not employed. They are
        currently homeless and living in their van.


        37. [The Biological Parents] have a lengthy history of substance
        abuse. However, they continue to deny that [A.A.P.] was born
        with methamphetamine in her system. They do not believe that

Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 9 of 20
        [DCS] was justified in removing the children. The [Biological
        Parents] state that they do not need services. [Mother] testified
        that she used to have an addiction to hydrocodone. She testified
        that she last used hydrocodone on the day [A.A.P.] was born.
        She obtained the hydrocodone from [Father]. [Mother] denies
        using methamphetamine, even though [A.A.P.] tested positive
        for methamphetamine at birth. [The Biological Parents] are
        clearly not benefiting from any services they are currently
        receiving.


        38. [Mother] testified that she and her husband are not able to
        care for the children at this time.


        39. [The Adoptive Parents] have been married for 11 years.
        [J.L.P. and A.A.P.] have been in their care since the beginning of
        April 2017. They love [J.L.P. and A.A.P.] They wish to adopt
        J.L.P. and A.A.P.


        40. [Mother] admits that [J.L.P. and A.A.P.] are loved and well
        cared for in the [Adoptive Parents’] home. [Mother] testified that
        if the [Biological Parents] cannot have [J.L.P. and A.A.P]
        returned to them, she agrees that the [Adoptive Parents] should
        adopt [J.L.P. and A.A.P].


        ****


                                     Conclusions of Law


        1. [Biological Parents] are seeking to withdraw their consents to
        the adoption of [the Children] pursuant to Indiana Code [section]
        31-l9-10-3(a). . .


        * * *.*


Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 10 of 20
        7. The children were removed for [the] third time on March 24,
        2017—less than two years after their last [CHINS] case was
        closed. [A.A.P.] tested positive for methamphetamine,
        amphetamine, and hydrocodone at birth. She suffered extreme
        withdrawal symptoms. She spent the next three weeks in the
        hospital. [Mother] did not properly care for [A.A.P.] while she
        was in the hospital. [Mother] slept while the baby cried. Nurses
        had to care for [A.A.P.] [Father] was found to be impaired. He
        was stumbling and aggressive. He could not stand for any length
        of time. When confronted, he walked away from the residence
        and left the children alone. No other adult was present. The
        home conditions were extremely poor. The children had not
        eaten all day. The children were dressed in dirty clothes and
        smelled bad. The older children were caring for the younger
        children. The parents were rarely home. The children had not
        been attending school.


        8. [The Biological Parents] did not comply with the dispositional
        orders. They did not appear for drug screens. They went long
        periods without visiting the children, once failing to visit for over
        four months. On March 19, 2018, a permanency plan for
        termination of the parent-child relationship was approved.
        Neither parent had completed a substance abuse assessment.
        Neither parent was participating in substance abuse treatment.
        They were not regularly participating in drug screens.


        9. [The Biological Parents] note that they have recently begun to
        comply with some court ordered services. They fail to note that
        they did not comply for almost 18 months. Further, the
        [Biological Parents] have not benefited from the services they
        have received during this brief period. The [Biological Parents]
        continue to deny that [A.A.P.] was born with methamphetamine
        in her system. They continue to state that [DCS] was not
        justified in removing their children. They continue to believe
        that they do not need services.


Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 11 of 20
        10. The [Biological Parents] also testified that they did not
        understand that they were signing consents for their children to
        be adopted. They testified that they did not know what they
        were signing and that they were coerced into signing the
        documents by their attorneys. Their attorneys testified that the
        [Biological Parents] understood what they were signing. These
        attorneys took great pains to ensure that the [Biological Parents]
        understood. The [Biological Parents’] testimony was clearly not
        truthful.


        11. [J.L.P. and A.A.P.] were placed with [the Adoptive Parents]
        in early April 2017. This is the only home that [A.A.P.] has ever
        known. [J.L.P.] displays substantial anxiety when faced with the
        possibility that she could be removed from this home. The
        [Adoptive Parents] love these children and wish to adopt them.
        They can clearly provide the children with a safe and stable home
        that their parents cannot and will not provide.


        12. [The Biological Parents] have offered no meaningful
        evidence that they are acting in the best interests of [J.L.P. and
        A.A.P.] in attempting to withdraw their consents for the children
        to be adopted. Indeed, the evidence is overwhelming that it is in
        the best interests of [J.L.P. and A.A.P.] that they be adopted by
        [Adoptive Parents]


        IT IS THEREFORE ORDERED, ADJUDGED, AND
        DECREED that:


        1. The request to withdraw parental consent to the adoption of
        [J.L.P. and A.A.P.] filed by [the Biological Parents] is denied.


(Appellants’ Joint Amended App. Vol. II, pp. 80-85)




Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 12 of 20
The Biological Parents now appeal. Additional facts will be provided as

necessary.


                        DISCUSSION AND DECISION
                                             I. Consent

                                      A. Standard of Review

The Biological Parents contend that the trial court erred in finding that they

validly consented to the adoption of J.L.P. and A.A.P. When we review a trial

court’s ruling in an adoption proceeding, we will not disturb that ruling unless

the evidence leads to only one conclusion and the trial court reached the

opposite conclusion. In re Adoption of H.N.P.G., 878 N.E.2d 900, 903 (Ind. Ct.

App. 2008). We will not reweigh the evidence; rather, we will examine the

evidence most favorable to the trial court’s decision together with the

reasonable inferences drawn therefrom. Id. We will affirm if sufficient

evidence exists to sustain the decision. In re Adoption of M.A.S., 815 N.E.2d 216,

219 (Ind. Ct. App. 2004). The trial court is presumed to be correct and it is the

appellant’s burden to overcome that presumption. Id.


The adoption statute creates a proceeding unknown at common law. In re

B.W., 908 N.E.2d 586, 593 (Ind. 2009). This court must strictly construe the

statute in favor of the rights of biological parents. Id. However, we must also

be mindful that “careful administration of the statute serves purposes beyond

protecting the rights of natural parents to be with their children.” In re Adoption

of A.S., 912 N.E.2d 840, 848 (Ind. Ct. App. 2009). “It also serves to protect


Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 13 of 20
children and to shield all involved parties from unnecessary instability and

uncertainty.” Id.


Indiana Code section 31-19-10-3 provides in relevant part as follows:


        (a) A consent to adoption may be withdrawn not later than thirty
        (30) days after consent to adoption is signed if:


                 (1) the court finds, after notice and opportunity to be heard
                 afforded to the petitioner for adoption, that the person
                 seeking the withdrawal is acting in the best interest of the
                 person sought to be adopted; and


                 (2) the court orders the withdrawal.


For the execution of a parent’s consent to adoption to be valid, the consent

must be voluntary. Bell v. A.R.H., 654 N.E.2d 29, 32 (Ind. Ct. App. 1995).

“Consent is voluntary if it is an act of the parent’s own volition, free from

duress, fraud, or any other consent-vitiating factors, and if it is made with

knowledge of the essential facts.” Id. The issue of an invalid consent may be

raised by a petition to withdraw consent, and the burden of proof by clear and

convincing evidence falls on the petitioner. I.C. § 31-19-10-0.5.


                                B. Validity of Mother’s Consent

Mother’s contention on appeal is that her consent to adoption and

relinquishment of parental rights were not made voluntarily because (1) her

consent was conditioned upon her belief that she would retain contact with

J.L.P. and A.A.P. post adoption; and (2) that she was misled by her counsel,


Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 14 of 20
Attorney Hancuff, at the time she executed the consents—i.e., that Attorney

Hancuff advised her that DCS would file a CHINS case against her fourteenth

child upon birth if she failed to give her consent to the adoption.


Turning to Mother’s first contention, the record fails to support Mother’s claim

that her consent was conditioned upon her belief that she would remain in

contact with J.L.P. and A.A.P. after she consented to the adoption. At the

evidentiary hearing, when Attorney Hancuff was asked if Mother’s allegations

were true, she stated, “I think DCS said yes, visitation would continue.” (Tr.

Vol. II, p. 82). While her answer was in the affirmative, Attorney Hancuff’s

response was not a definitive statement and the record lacks any conclusive

statement from DCS supporting Mother’s claim. Moreover, at the evidentiary

hearing, the Adoptive Parents refuted that they were to enter into a post-

adoption contract which would allow the Biological Parents to remain in

contact with J.L.P. and A.A.P. See Ind. Code § 31-19-16-2(3) (stating that post-

adoption visitations would require, among other things, the consent of the

adoptive parents). Contrary to Mother’s assertions on appeal, however, it is

clear from the record that post-adoption visitation privileges were never

guaranteed after the consents were signed, nor was Mother’s decision

contingent upon her receiving post-adoption visits with J.L.P. and A.A.P.


As for Mother’s second contention that she was misled by Attorney Hancuff—

that DCS would pursue a CHINS case against her fourteenth child upon birth if

she had failed to consent to the adoption of J.L.P. and A.A.P.—this argument

lacks merit. Attorney Hancuff contradicted Mother’s claim by explaining that

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she certainly did not offer that advice in “those terms,” rather she accurately

explained to Mother the implications of the pending CHINS cases to Mother’s

unborn child. Attorney Hancuff advised Mother that DCS would remain

“involved” in her life and in the life of her unborn child due to the open CHINS

cases. (Tr. Vol. II, p. 82, 83).


Contrary to Mother’s contentions on appeal, our review of the record leaves us

convinced that no false material representations, such as post-adoption

visitations guarantees, were made to induce Mother to consent to the adoption

of J.L.P. and A.A.P. Also, the conversation that Attorney Hancuff had with

Mother on the date of the termination hearing involved accurate legal advice

and an assessment of the likely outcomes of each of the options available to

Mother. Thus, we hold that Mother’s consent to the adoption of J.L.P. and

A.A.P. was valid and was made with full understanding of the consequences

and essential facts and was not obtained through fraudulent means. Thus, we

affirm the trial court in all respects.


                                 C. Validity of Father’s Consent

Although Father filed his own appellate brief, he repeats Mother’s arguments

word for word and does not attempt to explain or give reasons why his consent

to the adoption of J.L.P. and A.A.P. was invalid. We find that Father has

waived his argument for appeal. See Indiana Appellate Rule 46(A)(8)(a).

While Father waives his issue for appellate review, we address the matter

considering the significant issue at stake.



Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 16 of 20
On the issue of whether Father’s consent to the adoption was valid, the trial

court entered the following pertinent findings


        29. [Father] admits that he signed the consents for [J.L.P. and
        A.A.P.] to be adopted on June 11, 2018. However, he testified
        that he was told that if he did not sign he would not be allowed
        to see his children and that his unborn child would be taken at
        birth. [Father] testified that he did not read the documents and
        that he was not told that he was signing away his parental rights.
        He testified that he “just got pissed off and signed the paper.” He
        alleges that he was coerced into signing by his attorney. [Father]
        is not a credible witness. His testimony is not truthful.


        30. Attorney Jason Meredith [(Attorney Meredith)] represented
        [Father] in the CHINS cases and the termination cases.
        [Attorney] Meredith testified that [Father] understood what he
        was signing. There was no coercion or duress. [Attorney]
        Meredith is a credible witness.


(Appellant’s Joint App. Vol. II, p. 81). Father does not challenge these

findings. Because Father has not challenged the propriety of the above findings

upon which the trial court could have relied to reject his request to withdraw his

consent to the adoption, we interpret his contentions as requests to consider

evidence contrary to the judgment and reweigh the evidence and findings,

which we cannot do. See In re Adoption of H.N.P.G., 878 N.E.2d at 903. We will

not second guess the trial court’s evaluation of the evidence, and we affirm the

trial court’s finding that Father’s consent was not undermined or was in any

way invalid.


                                          II. Due Process

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Due process safeguards preclude “state action that deprives a person of life,

liberty, or property without a fair proceeding.” In re G.P., 4 N.E.3d 1158, 1165

(Ind. 2014) (quoting In re C.G., 954 N.E.2d 910, 916 (Ind. 2011)).


Mother argues


        Because DCS did not proceed with the termination of parental
        rights case, choosing instead to rely on the consents signed by
        Mother with respect to J.L.P. and A.A.P., it relieved itself of the
        burden of terminating [her] parental rights under the clear and
        convincing standard. DCS was able to shift the burden in
        terminating [her] parental rights from DCS to Mother, who must
        now either prove her consents are not valid because they were
        not voluntary or that she is acting in the best interest of the
        children in seeking the withdrawal of those consents.


(Mother’s Br. p. 18). Father’s due process claim on appeal mirrors Mother’s.


The Biological Parents’ argument that DCS should have gone forward with the

TPR cases instead of seeking their consent to the adoption of J.L.P. and

A.A.P., wholly lacks merit. The Biological Parents do not cite any controlling

authority that DCS should have pursued such a route. Moreover, under the

advisement of their appointed counsels, the Biological Parents chose to pursue

the adoption avenue instead of going forward with a termination hearing.

Under the circumstances, DCS was not required to move forward with the TPR

factfinding hearing.


To the extent the Biological Parents argue that there was unfair burden-shifting,

we find this argument without merit. A party who has previously executed a


Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 18 of 20
consent to an adoption can withdraw their consent by filing a motion with the

court to withdraw consent. I.C.§ 31-19-10-1(c). However, there are limits on a

party’s ability to withdraw a consent to adoption. Indiana Code section 31-19-

10-3 provides that a party who is seeking to withdraw consent cannot arbitrarily

revoke but must instead specify precisely why it is in the child’s best interest to

permit her to withdraw her consent. See also Bell, 654 N.E.2d at 34.


As we have already concluded, the Biological Parents validly executed their

respective consents to the adoption of J.L.P. and A.A.P. The adoption statute

provides that when the Biological Parents sought to withdraw their consent to

the adoption, the burden of proof properly shifted to them to show why their

withdrawal was in their children’s best interests. Id. Following a full

evidentiary hearing on the Biological Parents’ motion to withdraw their consent

to the adoption of J.L.P. and A.A.P., the trial court issued the following

finding:


        The Biological Parents] have offered no meaningful evidence that
        they are acting in the best interests of [J.L.P. and A.A.P.] in
        attempting to withdraw their consents for the children to be
        adopted. Indeed, the evidence is overwhelming that it is in the
        best interests of [J.L.P. and A.A.P.] that they be adopted by
        [Adoptive Parents]


(Appellants’ Amended Joint App. Vol. II, p. 83). The Biological Parents have

not challenged the propriety of the above finding, and we interpret their request

as an invitation for us to reweigh the evidence. Accordingly, we conclude that

the Biological Parents were not deprived of due process.

Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 19 of 20
                                      CONCLUSION
Based on the foregoing, we hold that the trial court did not error in denying the

Biological Parents’ request to withdraw their respective consent to the adoption

of J.L.P. and A.A.P. in favor of the Adoptive Parents. Also, we conclude that

the Biological Parents were not deprived of due process.


Affirmed.


Bailey, J. and Pyle, J. concur




Court of Appeals of Indiana | Memorandum Decision 19A-AD-93 | June 27, 2019   Page 20 of 20
