MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Jan 30 2018, 9:49 am

this Memorandum Decision shall not be                                            CLERK
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court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                         ATTORNEY FOR APPELLEES:
J. M.                                                    G.A AND J.A.
Westville, Indiana                                       Debra Voltz-Miller
                                                         South Bend, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In re: The Adoption of: J.W.A.,                          January 30, 2018
                                                         Court of Appeals Case No.
                                                         71A03-1704-AD-764
J. M.,
                                                         Appeal from the St. Joseph Probate
Appellant,                                               Court
         v.                                              The Honorable James N. Fox,
                                                         Judge
State of Indiana, A. A., G. A.,                          Trial Court Cause No.
and J. A.,                                               71J01-1512-AD-132

Appellees.



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1704-AD-764 | January 30, 2018               Page 1 of 9
                                Case Summary and Issue
[1]   The trial court granted a petition by J.A. and G.A. (“Grandparents”) to adopt

      their grandson, J.W.A (“Child”), finding the consent of J.M., Child’s putative

      father, was unnecessary. J.M., acting pro se, appeals the trial court’s order

      granting the petition for adoption, raising one issue for our review, which we

      restate as whether the trial court abused its discretion in granting the adoption

      over J.M.’s objection. Concluding J.M.’s consent was not required, we affirm.



                            Facts and Procedural History
[2]   Child was born on January 31, 2015, to A.A. (“Mother”). A.A. and Child lived

      with Grandparents, A.A.’s parents, continuously since the time of Child’s birth.

      J.M. was incarcerated when Child was six months old and he remains

      incarcerated at this time. When Child was one year old, Mother gave her

      permission for Grandparents to formally adopt Child. On January 5, 2016,

      counsel for Grandparents sent J.M. a letter and Notice to Named Father

      informing him of the impending adoption. In compliance with the dictates of

      Indiana Code section 31-19-4-5, the notice stated:


              If [J.M.] seeks to contest the adoption of the child, he must file a
              motion to contest the adoption in accordance with I.C. 31-19-10-
              1 in the above named court, or a paternity action under I.C. 31-
              14 not later than thirty (30) days after the date of service of this
              notice.


              If [J.M.] does not file a motion to contest the adoption; or a
              paternity action under IC 31-14; within thirty (30) days after

      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-AD-764 | January 30, 2018   Page 2 of 9
               service of this notice; or after filing a paternity action under IC
               31-14 fails to establish paternity within a reasonable period as
               determined by the paternity court under IC 31-14-21-9 through
               IC 31-14-21-11, then the above named court will hear and
               determine the petition for adoption. His consent will be
               irrevocably implied and he will lose his right to contest either the
               adoption or the validity of his implied consent to the adoption.
               He will lose his right to establish his paternity of the child under
               I.C. 31-14.


      Appendix of Appellant, Volume 2 at 10.1 On January 20, 2016, J.M. filed a

      handwritten letter with the trial court designated “Motion to Contest

      Adoption” stating his intention to contest the adoption, establish paternity, and

      seek custody of Child.


[3]   Grandparents filed their petition to adopt on February 3, 2016. Accompanying

      the petition was Mother’s consent and an affidavit from the Indiana State

      Department of Health affirming that no putative father had registered with the

      Putative Father Registry and there was no paternity determination on file. 2 On

      March 24, 2016, Grandparents filed a Motion to Determine Standing to

      Contest Adoption alleging J.M. had failed to timely register with the Putative




      1
        We note the form of this notice is not the form required by the version of Indiana Code section 31-19-4-5 in
      effect in 2016. The language in the notice provided to J.M. appeared in an earlier version of the statute. In
      2010, the statute was amended to eliminate references to filing a paternity action as a possible course of
      action in response to the notice. Nevertheless, the notice does properly advise J.M. of his obligation to file a
      motion to contest the adoption within thirty days and the consequences of failing to do so.
      2
       The petition and accompanying documents were not included in the appendix filed by either J.M. or
      Grandparents.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-AD-764 | January 30, 2018               Page 3 of 9
      Father Registry or file a paternity action and therefore his consent to the

      adoption should be irrevocably implied without further court action.


[4]   On August 8, 2016, J.M. filed with the trial court an Indiana Putative Father

      Registry form, dated August 3, 2016. On August 17, 2016, J.M. filed a petition

      for temporary guardianship of Child.3


[5]   The trial court appointed a Guardian Ad Litem (“GAL”). The GAL filed his

      report with the court on September 9, 2016, concluding that it would be in

      Child’s best interests for the court to grant Grandparents’ adoption petition.

      The trial court held an evidentiary hearing on September 19, 2016, at which

      J.M. appeared and presented his case. The trial court issued its order approving

      the adoption petition on March 8, 2017, which, in pertinent part, reads as

      follows:


               The Court having heard evidence on the Petition for Adoption
               now finds:
               1. The adoption requested is in the best interest of the child.
               2. [Grandparents] are of sufficient ability to rear the child and
               furnish suitable support and education.
               ***
               5. Proper notice of the petition for adoption, if necessary, has
               been given.
               6. Proper consent, if necessary, has been given.




      3
        This petition for temporary guardianship does not appear in the record before us, but it appears from J.M.’s
      brief that he was perhaps requesting his mother be named temporary guardian of Child. See Brief of
      Appellant at 12 (J.M. arguing that his mother or aunts and uncles “should have been offered the opportunity
      to legally be an active guardian to [Child] before they were actively deprived of their rights before the
      continuing of the Adoption proceeding”).

      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-AD-764 | January 30, 2018             Page 4 of 9
              ***
              The Court heard testimony, took evidence, and considered the
              pleadings and now determines as follows:
              ***
              The alleged father of the child is [J.M.];
              [J.M.] has failed to sign a paternity affidavit;
              [J.M.] has no relationship with the child;
              [J.M.] has failed to provide any support for the child;
              [J.M.] has been incarcerated for the entire life of the child;
              [J.M.] has failed [to] file for paternity of the child before the
              contested adoption of the child;
              The Court finds the facts of the Petition are true:
              ***
              The consent of the biological father can be implied because he
              has not timely filed to establish paternity or registered with the
              putative father registry;
              ***
              The evidence presented was overwhelmingly in favor of granting
              the adoption.
              1. The court approves [Grandparents’] Petition for Adoption.
              2. The Court denies [J.M.’s] Petition for Temporary
              Guardianship.


      Appendix of Appellant, Volume 2 at 43-44. J.M. filed his notice of appeal on

      April 10, 2017, and then, on May 4, 2017, filed a petition to establish paternity

      of Child, referencing the pending appeal.



                                 Discussion and Decision
                                     I. Standard of Review
[6]   Pursuant to statute, a trial court shall grant a petition for adoption if the

      adoption is in the child’s best interest, the petitioners are sufficiently capable of

      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-AD-764 | January 30, 2018   Page 5 of 9
      rearing and supporting the child, and proper consent, if required, has been

      given. Ind. Code § 31-19-11-1(a). We review the entry of an adoption decree

      by considering the evidence most favorable to the petitioners and the reasonable

      inferences that can be drawn therefrom to determine whether sufficient

      evidence exists to sustain the trial court’s decision. Matter of Adoption of C.J., 71

      N.E.3d 436, 442 (Ind. Ct. App. 2017). We will not overturn the trial court’s

      decision unless the evidence leads to but one conclusion and the trial court

      reached the opposite conclusion. In re Adoption of S.O., 56 N.E.3d 77, 80 (Ind.

      Ct. App. 2016). “The decision of the trial court is presumed to be correct, and

      it is the appellant’s burden to overcome that presumption.” K.S. v. D.S., 64

      N.E.3d 1209, 1214 (Ind. Ct. App. 2016) (citation omitted).


                                II. Necessity of J.M.’s Consent
[7]   The issue is whether the trial court erred in granting the petition for adoption

      over J.M.’s objection. It is undisputed that J.M. did not execute a paternity

      affidavit, did not register with the putative father registry until well after the

      adoption petition was filed, and has not established paternity.4




      4
        Grandparents contend that J.M.’s failure to register with the putative father registry before the filing of the
      adoption petition and his failure to file a paternity action within thirty days after the petition was filed
      irrevocably implies his consent to the adoption. This contention appears to be a misunderstanding of the
      relevant statutes. First, the putative father registry statute “does not apply if, on or before the date the child’s
      mother executes a consent to the child’s adoption, the child’s mother discloses the name and address of the
      putative father to the attorney or agency that is arranging the child’s adoption.” Ind. Code § 31-19-5-1(b)
      (emphasis added). Although we do not have the mother’s consent in the record before us so we may know
      the exact date she signed the consent, it appears she gave the attorney arranging the adoption J.M.’s name
      and address in January of 2016 because he was provided notice at that time. The petition for adoption with


      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-AD-764 | January 30, 2018                    Page 6 of 9
[8]   The adoption of a minor child generally requires, among other things, the

      written consent of the child’s mother, and, if the child is born out of wedlock,

      the consent of the child’s father whose paternity has been established by law. In

      re B.W., 908 N.E.2d 586, 590 (Ind. 2009); Ind. Code § 31-19-9-1(a)(2). Here,

      J.M.’s paternity has not been established by law. As the trial court found, he

      neither executed a paternity affidavit nor instituted a paternity action. His

      consent to the adoption is therefore not required. This is reinforced by the

      provisions of Indiana Code section 31-19-9-8, which provides that “[c]onsent to

      adoption, which may be required under section 1 of this chapter, is not

      required” from, among others, the following:




      the accompanying consent was not filed until February of 2016. Therefore, it does not appear the putative
      father registry statutes apply to this situation. Second, the purpose of the putative father registry is to
      “determine the name and address of a father whose name and address have not been disclosed by the mother
      . . . so that notice of the adoption may be provided to the putative father.” Ind. Code § 31-19-5-3. A putative
      father whose name and address are not provided by the mother must register in order to be entitled to notice.
      Ind. Code § 31-19-5-5. Mother apparently provided J.M.’s name and address. J.M. was provided notice of
      the pending adoption. Requiring him to register after he received notice would serve no purpose. Finally, the
      statutes upon which Grandparents base their contention that J.M.’s consent is irrevocably implied are not
      applicable. Indiana Code section 31-19-9-12 states the consent of a putative father to adoption is irrevocably
      implied without further court action under four alternate circumstances: where the putative father fails to file
      a motion to contest the adoption; files a motion to contest but fails to appear at the hearing; files a paternity
      action but fails to establish paternity; or fails to register with the putative father registry when required to.
      Because J.M. filed a motion to contest the adoption and appeared at the adoption hearing and because J.M.
      did not file a paternity action and is not required to register with the putative father registry, this section does
      not apply. Ind. Code § 31-19-9-12(2). As to J.M.’s failure to file a paternity action, Indiana Code section 31-
      19-9-15 states the putative father’s consent to adoption will be irrevocably implied without further court
      action if the father fails to file a paternity action within thirty days of “receiving actual notice under IC 31-19-
      3” of the mother’s intent to proceed with adoptive placement of the child. Ind. Code § 31-19-9-15(a)
      (emphasis added). J.M. did not receive notice under Indiana Code chapter 31-19-3, which applies to pre-
      birth proceedings; he received notice under Indiana Code chapter 31-19-4, which applies to post-birth
      adoption proceedings. Thus, we disagree with the bases on which Grandparents justify the trial court’s
      decision, although we ultimately agree with them that the trial court did not err in granting the adoption
      petition.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-AD-764 | January 30, 2018                  Page 7 of 9
                (3) The biological father of a child born out of wedlock whose
                paternity has not been established:


                         (A) by a court proceeding other than the adoption
                         proceeding; or


                         (B) by executing a paternity affidavit under IC 16-37-2-2.1.


[9]    For that reason alone, the trial court did not err in granting the adoption

       petition even without J.M.’s consent. J.M.’s consent did not need to be implied

       when J.M.’s consent was never required. Although J.M. filed a motion to

       contest the adoption, he did not do anything thereafter to show that he was

       entitled to contest the adoption; that is, he did not establish or even attempt to

       establish paternity. The fact that J.M.’s motion to contest the adoption was

       implicitly denied by the trial court when it granted the adoption petition means

       J.M. is now “barred from establishing paternity of [Child], by affidavit or

       otherwise, in Indiana or any other jurisdiction . . . .” Ind. Code § 31-19-10-8.


[10]   The trial court found that the adoption was in the best interests of Child, that

       Grandparents have sufficient ability to raise Child and offer him suitable

       support and education, that the proper notice was given, and that the necessary

       consents were obtained. The evidence supports these findings, and the trial

       court therefore properly granted the adoption petition.5




       5
         J.M. raises several other issues, but because of our resolution of the consent issue, we need not address
       them.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-AD-764 | January 30, 2018               Page 8 of 9
                                               Conclusion
[11]   The trial court did not err in granting the adoption over J.M.’s objection

       because J.M.’s consent was not necessary. The judgment of the trial court is

       affirmed.


[12]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-AD-764 | January 30, 2018   Page 9 of 9
