                                                                           FILED
                                                                     Jun 22 2016, 8:35 am

                                                                           CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
Donna Jameson                                              Roger A. Young
Greenwood, Indiana                                         Franklin, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In Re: the Adoption of S.O.,                               June 22, 2016
A.O., and N.O.,                                            Court of Appeals Case No.
                                                           41A01-1510-AD-1781
P.P.,
                                                           Appeal from the Johnson Superior
Appellant-Respondent,                                      Court
        v.                                                 The Honorable Kevin M. Barton,
                                                           Judge
A.O.,                                                      Trial Court Cause No.
                                                           41D01-1505-AD-16
Appellee-Petitioner



Baker, Judge.




Court of Appeals of Indiana | Opinion 41A01-1510-AD-1781 | June 22, 2016                      Page 1 of 13
[1]   P.P. (Biological Mother) appeals the judgment of the trial court, which granted

      an adoption petition over her objection. In an attempt to hasten the adoption

      process, the trial court dispensed with the statutorily required criminal

      background check, and did not consolidate a pending paternity action with the

      adoption proceeding. Reminded of the maxim, “Wisely and slow; they stumble

      that run fast,”1 we reverse and remand with instructions to correct these errors.


                                                        Facts
[2]   N.O., S.O., and A.O. (Children) were born out of wedlock to Biological

      Mother and L.O. (Father) in 2004, 2005, and 2008, respectively. Father’s

      paternity of Children was established by a paternity order on May 4, 2012,

      which also awarded him physical and legal custody of Children.2 This order

      established child support and parenting time for Biological Mother. Father did

      not know Biological Mother’s address at this time, so he attempted to serve her

      by publication. Biological Mother did not attend the hearing, and she was not

      distributed a copy of the paternity order.


[3]   Biological Mother did not visit Children according to the parenting time set by

      the paternity court, but did visit Children when they would visit their maternal




      1
          WILLIAM SHAKESPEARE, ROMEO AND JULIET act 2, sc. 3.
      2
       We do not have a copy of the paternity court’s order, but that order was cited extensively in the adoption
      court’s order, which is how we know of the contents.

      Court of Appeals of Indiana | Opinion 41A01-1510-AD-1781 | June 22, 2016                         Page 2 of 13
      grandmother. These visits occurred roughly once per month. She also gave

      Children birthday presents.


[4]   In February 2009, Father married Adoptive Mother (whose initials are also

      A.O.), and they have another child together. On May 27, 2015, Adoptive

      Mother filed a verified petition to adopt Children.


[5]   Father and Adoptive Mother again attempted to notify Biological Mother by

      publication. Biological Mother learned of the adoption petition and, on August

      13, 2015, filed an objection to the adoption, informing the adoption court that

      she did not give her consent. On August 28, 2015, Biological Mother filed a

      motion in the paternity court, requesting that the May 2012 paternity order be

      set aside. She alleged that Father’s attempt to notify her by publication was

      defective, and argued that the paternity order was void for lack of personal

      jurisdiction over her.


[6]   On September 14, 2015, the adoption court held a hearing on Adoptive

      Mother’s adoption petition. At the beginning of the hearing, the parties

      discussed other cases that were pending in other courts. Counsel for Adoptive

      Mother noted the arguments made in the paternity court, and said, “after

      today’s hearing I was going to have it transferred here . . . . I wasn’t aware that

      we were going forward on the adoption today unless I overlooked it in the

      orders.” Tr. p. 12. The adoption court was aware, as it mentioned at the

      hearing, that “there is a statute that basically says that it’s mandatory that the

      paternity case be consolidated into the adoption case.” Id. at 13. But all the


      Court of Appeals of Indiana | Opinion 41A01-1510-AD-1781 | June 22, 2016   Page 3 of 13
      parties and witnesses were already gathered, the adoption court continued,

      “and so with that being said then we’ll proceed with our hearing today on the

      adoption.” Id. at 15.


[7]   On September 30, 2015, the adoption court granted Adoptive Mother’s petition

      to adopt. Although the court did not find clear and convincing evidence that

      Biological Mother failed to communicate with Children for over a year, it did

      find that she had failed to meaningfully support Children for over a year.

      Therefore, the adoption court found that her consent to the adoption was not

      necessary. Biological Mother now appeals.


                                    Discussion and Decision
                                      I. Standard of Review
[8]   The appropriate standard of review on appeal where an adoption petition has

      been granted is to consider the evidence most favorable to the petitioner and the

      reasonable inferences which can be drawn therefrom to determine whether

      sufficient evidence exists to sustain the trial court’s decision. Irvin v. Hood, 712

      N.E.2d 1012, 1013 (Ind. Ct. App. 1999). We will not disturb the trial court’s

      decision in an adoption proceeding unless the evidence at trial led to but one

      conclusion and the trial court reached an opposite conclusion. Id. On appeal,

      we will not reweigh the evidence, but instead will examine the evidence most

      favorable to the trial court’s decision. Id.




      Court of Appeals of Indiana | Opinion 41A01-1510-AD-1781 | June 22, 2016    Page 4 of 13
                                       II. Background Check
[9]    Biological Mother argues that Adoptive Mother and the adoption court failed to

       comply with the statutory supervision requirements. Indiana Code section 31-

       19-8-1 says that “[a]n adoption may be granted in Indiana only after . . . except

       as provided in section 2(c) of this chapter, a period of supervision . . . by a

       licensed child placing agency for a child who has not been adjudicated to be a

       child in need of services.” All parties agree that no such supervision took place,

       but Adoptive Mother argues that she took advantage of the exception in section

       2(c). That exception applies “if one (1) of the petitioners is a stepparent . . . of

       the child and the court waives the report under section 5(c) of this chapter.”

       I.C. § 31-19-8-2(c).


[10]   Section 5(c) repeats that the court may waive the supervision report if one of the

       petitioners is a stepparent, but the next subsection provides the following:


               (d) If the court waives the reports required under subsection (a),
               the court shall require the licensed child placing agency for a
               child who is not adjudicated to be a child in need of services or, if
               the child is the subject of an open child in need of services action,
               each local office to:


                        (1) ensure a criminal history check is conducted under IC
                        31-19-2-7.5; and


                        (2) report to the court the results of the criminal history
                        check.


       I.C. § 31-19-8-5(d).

       Court of Appeals of Indiana | Opinion 41A01-1510-AD-1781 | June 22, 2016       Page 5 of 13
[11]   We must pause our analysis to note a glaring deficiency in the instant case: we

       can find no mention in the record of any involvement of any licensed child

       placing agency or any Department of Child Services (DCS) office. Our General

       Assembly has required that every adoption case—whether done by stepparent,

       blood relative, or a nonrelative—involve either a licensed child placing agency

       or DCS. In general, every petitioner must have such an agency complete the

       period of supervision along with a report. I.C. § 31-19-8-1. Although the

       supervisory period and report can be waived for stepparents or grandparents,

       I.C. § 31-19-8-5(c), exercising that waiver then obligates the court to order an

       agency to conduct a criminal history check and complete a report. I.C. § 31-19-

       8-5(d). In sum, the absence of any child placing agency or DCS in this case

       means an error has occurred.


[12]   After Adoptive Mother filed her May 27, 2015 adoption petition, the adoption

       court responded on June 4 with an “Order Upon Filing of Petition for

       Adoption.” Appellant’s App. p. 44. That order listed several requirements to

       be satisfied before the court would set a hearing. One requirement was the

       following:

                if the Petitioner qualifies under I.C. 31-19-8-5(c)(1)3; [Petitioner
                may] file a request for waiver of a report by a licensed child
                placing agency AND submit a self-produced report that is
                comparable to such report, and which includes information on




       3
         There is no subsection -5(c)(1). The text of subsection 5(c) discusses what to do “if one (1) of the petitioners
       is a stepparent . . . .” The order has apparently mistaken that number for a further subdivision.

       Court of Appeals of Indiana | Opinion 41A01-1510-AD-1781 | June 22, 2016                             Page 6 of 13
               education, family background, family relationships and financial
               information of the petitioner and family members, a criminal
               record check and check regarding any investigations for child
               abuse from the Department of Child Services.


       Id. at 44-45.


[13]   We cannot find any statutory sanction for the proposition that one can waive all

       involvement of child placing agencies or DCS by providing the court with a

       self-produced report. This instruction from the adoption court was erroneous.

       The question becomes whether the error is reversible error.


[14]   Returning to our analysis of the adoption statutes, Indiana Code section 31-9-2-

       22.5 defines “conduct a criminal history check” for the purposes of Indiana

       Code article 31-19, which is the article governing adoption. Summarized, a

       proper criminal history check (hereinafter, a “22.5 check”) of someone

       petitioning for adoption includes (1) the state police conducting a fingerprint

       based check of national and state records; (2) collecting reports of child abuse or

       neglect from any jurisdiction in which the petitioner has recently resided; (3)

       requesting information regarding reports of child abuse or neglect contained in

       a national registry maintained by the United States Department of Health and

       Human Services; (4) conducting a check of the United States Department of

       Justice’s national sex offender registry; and (5) conducting a check of local law

       enforcement records from any jurisdiction in which the petitioner has recently

       resided. I.C. § 31-9-2-22.5. Indiana Code section 31-19-2-7.5 requires the

       petitioner to submit the necessary information, forms, or consents required by


       Court of Appeals of Indiana | Opinion 41A01-1510-AD-1781 | June 22, 2016   Page 7 of 13
       the agency to conduct a 22.5 check, excepting only those petitioners who have

       completed a 22.5 check within the year preceding the petition and have

       submitted the results to the agency.


[15]   Adoptive Mother makes two arguments as to why the absence of any agency

       involvement and the absence of a 22.5 check are not reversible error. First, she

       argues that she provided a criminal records check from the Johnson County

       Sheriff’s Office and a Child Protective Services (CPS) History Check. The

       former did not find any criminal records, but it notes, “This information is

       limited to arrests made by the Johnson County Sheriff’s Office and those whom

       have been incarcerated in the Johnson County Law Enforcement Facility.”

       Appellee’s App. p. 11. The latter confirmed that Adoptive Mother did not have

       a record of child abuse or neglect in the state of Indiana. Id. at 12. Adoptive

       Mother argues that she substantially complied with the background check

       requirements because the “background checks that were submitted disclosed

       that Appellee had no criminal history which would have prevented the

       adoption and no evidence was introduced to the contrary.” Appellee’s Br. p.

       11.


[16]   We cannot agree that Adoptive Mother substantially complied with the

       requirements of a 22.5 check. Of the five sections of a 22.5 check, she has (at

       most) substantially complied with subsections (2) and (5), and done nothing

       regarding sections (1), (3), and (4). In other words, she has only attempted to

       comply with less than half of what a 22.5 check requires. Moreover, while she

       has conducted the two portions of the 22.5 check that involve local law

       Court of Appeals of Indiana | Opinion 41A01-1510-AD-1781 | June 22, 2016   Page 8 of 13
       enforcement, she has wholly omitted all of the portions that involve a national

       search. Our General Assembly included all five portions in the 22.5 check to

       ensure that a thorough, nation-wide search was done; we simply cannot say

       that a criminal records search in one Indiana county, combined with a CPS

       search of one of the fifty states, substantially complies with the exacting

       standard set out in Indiana Code section 31-9-2-22.5.


[17]   Adoptive Mother’s second argument is that Biological Mother “did not object

       to the criminal history check, nor argue that the background checks that were

       submitted failed to provide the court with sufficient information to make a best

       interests determination.” Appellee’s App. p. 11. We understand this argument

       to be that the lack of a 22.5 check was either invited error or harmless error.


[18]   Again, we cannot agree. Our General Assembly took the time to lay out all the

       components of a criminal background check for a reason: they are vitally

       necessary for the safety of adoptive children. If only Biological Mother’s rights

       were at stake, we would be tempted to find that her silence on this issue

       constituted invited error. It is well settled that a party may not present an

       argument or issue to an appellate court unless the party raised that argument or

       issue to the trial court. Pitman v. Pitman, 717 N.E.2d 627, 633 (Ind. Ct. App.

       1999). But an adoption is about more than the rights of the biological parent; it

       is about the safety and the best interests of the adopted child. Thus, we cannot

       dismiss the absence of a 22.5 check as an invited error.




       Court of Appeals of Indiana | Opinion 41A01-1510-AD-1781 | June 22, 2016   Page 9 of 13
[19]   What is more, our General Assembly has specifically legislated that “[a] court

       may not waive any criminal history check requirements set forth in this

       chapter.” I.C. § 31-19-2-7.3. The requirement to get a 22.5 check comes from

       that same chapter. I.C. § 31-19-2-7.5. Given that our General Assembly has

       explicitly instructed that no part of a 22.5 check can be waived, and that the

       adoption court here has apparently waived all of the national components of the

       22.5 check, we cannot say that the deficiencies in the criminal background

       check were harmless in this case.


[20]   It has long been the case that the adoption statutes are “in derogation of the

       common law, which made no provision for the adoption of children . . . and

       [they] must be strictly followed in all essential particulars.” Glansman v.

       Ledbetter, 190 Ind. 505, 516-17, 130 N.E. 230, 234 (1921). To avoid harsh

       results, our Supreme Court has also counseled that the statutes should not be so

       strictly construed as to defeat their purposes. Emmons v. Dinelli, 235 Ind. 249,

       260-61, 133 N.E.2d 56, 61 (1956).


[21]   Our General Assembly was aware that we strictly construe the adoption

       statutes, and still took the time to reiterate that the 22.5 check cannot be

       waived. I.C. § 31-19-2-7.3. It follows that a criminal background check that

       complies with Indiana Code section 31-9-2-22.5 is an essential particular of the

       adoption process; its absence renders an adoption petition fatally deficient.




       Court of Appeals of Indiana | Opinion 41A01-1510-AD-1781 | June 22, 2016   Page 10 of 13
                           III. Consolidating Paternity Action
[22]   Biological Mother also contends that the trial court was required to consolidate

       the previous paternity case with the present adoption case. She argues that the

       adoption court’s failure to do so constitutes reversible error.


[23]   Biological Mother’s argument centers on Indiana Code section 31-19-2-14(a),

       which provides the following:


               If a petition for adoption and a paternity action are pending at
               the same time for a child sought to be adopted, the court in
               which the petition for adoption has been filed has exclusive
               jurisdiction over the child, and the paternity proceeding must be
               consolidated with the adoption proceeding.


       Even after paternity is established, the paternity action remains pending. See,

       e.g., In re A.N.S., 741 N.E.2d 780, 785 n.6 (Ind. Ct. App. 2001) (the paternity

       court “retains jurisdiction to the extent the judgment demands, e.g., the court

       could modify custody, child support, and visitation”). We have previously held

       that a trial court that once possessed jurisdiction over a paternity case loses that

       jurisdiction when an adoption petition is filed in another trial court. In re B.C.,

       9 N.E.3d 745 (Ind. Ct. App. 2014). There is no case addressing the question

       before us, namely, whether the adoption court, having acquired exclusive

       jurisdiction, is required to consolidate the paternity case before ruling on the

       adoption petition.


[24]   Biological Mother argues that the adoption court should have consolidated the

       paternity case before holding a hearing because she is seeking to challenge the

       Court of Appeals of Indiana | Opinion 41A01-1510-AD-1781 | June 22, 2016   Page 11 of 13
       validity of the paternity court’s order. She argues that, although Adoptive

       Mother filed an Affidavit of Diligent Search in that case, Adoptive Mother’s

       affidavit was not verified or signed, and it contained only a general averment

       that a diligent search was done, rather than stating what actions she took to

       notify Biological Mother. Biological Mother contends that the failure to

       consolidate the paternity action in this case prejudiced her because she is not

       able to challenge her alleged lack of notice of the paternity petition.


[25]   We express no opinion on Biological Mother’s claims regarding the sufficiency

       of notice in the paternity action, as that case is not before us and would likely

       depend on determinations of fact. We do find, however, that the paternity

       action should have been consolidated with the adoption proceeding before the

       adoption court issued its decision.


[26]   An adoption proceeding is unlike a paternity proceeding in that once an

       adoption is granted, the adoption case closes. Indiana Code section 31-19-2-

       14(a) mandates that the paternity action be consolidated with the adoption

       proceeding. But if the adoption case is decided first, the adoption case closes

       and there would no longer be any proceeding with which the paternity action

       could be consolidated. Thus, ruling on the adoption petition first would render

       compliance with Indiana Code section 31-19-2-14(a) impossible.


[27]   Moreover, the paternity action needs to be consolidated with the adoption

       proceeding because a successful adoption petition severs the parental rights and

       obligations of the biological parents. Ind. Code § 31-19-15-1. Thus, upon the


       Court of Appeals of Indiana | Opinion 41A01-1510-AD-1781 | June 22, 2016   Page 12 of 13
       grant of an adoption petition, the paternity action should close. But upon the

       filing of the adoption petition, the paternity court loses jurisdiction to rule on

       the paternity case. In re B.C., 9 N.E.3d at 754. And if the adoption court issues

       its ruling, the adoption case closes and the adoption court can no longer rule on

       the paternity case. Thus, a paternity action that should be closed will instead

       exist in limbo with no court able to close it.


[28]   Instead, the adoption court should consolidate the paternity action before

       issuing its adoption decree. This way, the adoption court will be able to close

       the paternity action if it grants the adoption petition. In addition, many issues

       present in the paternity action will also have a bearing on the adoption analysis,

       and so an early consolidation will aid the adoption court’s decision.


[29]   The decision of the trial court is reversed and remanded with instructions to

       consolidate the paternity action and to order a statutorily compliant background

       check.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 41A01-1510-AD-1781 | June 22, 2016   Page 13 of 13
