                                                                                      FILED
MEMORANDUM DECISION                                                             Mar 23 2016, 6:38 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
John A. Kindley                                         John E. Broden
Lakeville, Indiana                                      Troy D. Warner
                                                        Leone Halpin, LLP
                                                        South Bend, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of H.A.F.,                           March 23, 2016
                                                        Court of Appeals Cause No.
A.J.F.,                                                 71A03-1505-AD-364
Appellant,                                              Appeal from the St. Joseph Probate
                                                        Court
        v.                                              The Honorable James N. Fox,
                                                        Judge
A.D.F.,                                                 Trial Court Cause No.
Appellee.                                               71J01-1404-AD-28




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016           Page 1 of 14
                                            Case Summary
[1]   A.J.F. (“Father”) appeals the trial court’s order regarding a petition to adopt his

      child, H.A.F., which was filed by A.D.F. (“Petitioner”). We affirm.


                                                    Issues
[2]   Father raises two issues. We address one dispositive issue, which we restate as

      whether Father’s consent to the adoption was required.


                                                    Facts
[3]   H.A.F. was born to A.B. (“Mother”) and Father in December 2004. Father

      would usually see H.A.F. at Father’s mother’s house, where H.A.F. visited

      every other weekend. Mother began dating Petitioner in January 2006, they

      began living together in the spring of 2008, and they have a child together.

      Other than a two-year period where they lived apart with family members to

      save money for a house, Petitioner, Mother, their child, and H.A.F. have lived

      together since 2008.


[4]   Father was incarcerated during 2006 and 2007 due to a theft conviction and

      spent six months in a work release placement in 2008. In 2009, Father was

      arrested and ultimately pled guilty to Class A felony rape, two counts of Class

      A felony criminal deviate conduct, and Class D felony impersonating a law

      enforcement officer. He was sentenced to seventy-five years in the Department

      of Correction, and he is not scheduled to be released until 2048.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016   Page 2 of 14
[5]   In April 2014, Petitioner filed a petition to adopt H.A.F. Mother consented to

      the adoption. Petitioner alleged that Father’s consent to the adoption was

      unnecessary because he is unfit and because he failed to support H.A.F. for

      twelve months or more. Father filed a motion to contest the adoption and

      alleged that he had been supporting H.A.F.


[6]   Father also filed a motion to dismiss, arguing that the adoption was improper

      under Indiana Code Section 31-19-15-1 because Mother would be divested of

      her parental rights if the adoption occurred. On September 2, 2014, the trial

      court denied Father’s motion to dismiss. The trial court found that the

      divesting statute did not “operate automatically in the manner suggested by

      Father.” App. p. 29. The trial court based its decision on In re Adoption of

      J.T.A., 988 N.E.2d 1250 (Ind. Ct. App. 2013), trans. denied. The trial court

      noted that whether Petitioner and Mother could “prove the family relationships

      that they allege is still an open question.” Id.


[7]   After an evidentiary hearing, the trial court entered an order noting that Father

      had urged the trial court to reconsider its position on Indiana Code Section 31-

      19-15-1, but the trial court declined to do so. The trial court found that

      “Mother and Petitioner, along with their shared biological child and [H.A.F.],

      are operating as a family unit and have been operating as a family unit for

      years.” App. p. 10. The trial court also found that Father’s consent to the

      adoption was not required pursuant to Indiana Code Section 31-19-9-8 because

      Petitioner proved Father was unfit. The trial court also found that H.A.F.’s



      Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016   Page 3 of 14
       best interests “would be served by dispensing with Father’s consent to her

       adoption.” Id. at 14.


[8]    At Father’s request, the trial court entered final judgment pursuant to Indiana

       Trial Rule 54(B). Father now appeals.


                                                   Analysis
[9]    Father argues that the trial court erred when it concluded that his consent to the

       adoption was unnecessary. When reviewing a 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 court reached an opposite conclusion. In re

       Adoption of M.A.S., 815 N.E.2d 216, 218 (Ind. Ct. App. 2004). We will not

       reweigh the evidence but instead will examine the evidence most favorable to

       the trial court’s decision together with reasonable inferences drawn therefrom to

       determine whether sufficient evidence exists to sustain the decision. Id. at 218-

       19. The decision of the trial court is presumed to be correct, and it is the

       appellant’s burden to overcome that presumption. Id. at 219.


[10]   Indiana Code Section 31-19-11-1(a) provides that the trial court “shall grant the

       petition for adoption and enter an adoption decree” if the court hears evidence

       and finds, in part, that “proper consent, if consent is necessary, to the adoption

       has been given.” According to Indiana Code Section 31-19-9-8(a), consent to

       adoption is not required from any of the following:

               (2)     A parent of a child in the custody of another person if for a
                       period of at least one (1) year the parent:

       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016   Page 4 of 14
                       (A)      fails without justifiable cause to communicate
                                significantly with the child when able to do so; or


                       (B)      knowingly fails to provide for the care and support
                                of the child when able to do so as required by law or
                                judicial decree.


                                                    *****


               (11)    A parent if:


                       (A)      a petitioner for adoption proves by clear and
                                convincing evidence that the parent is unfit to be a
                                parent; and


                       (B)      the best interests of the child sought to be adopted
                                would be served if the court dispensed with the
                                parent’s consent.


       Petitioner was required to prove by clear and convincing evidence that Father’s

       consent was not required under Indiana Code Section 31-19-9-8. M.A.S., 815

       N.E.2d at 220.


[11]   The trial court found that Petitioner did not prove Father had failed to support

       the H.A.F. and that Petitioner did not argue a failure to communicate.

       However, the trial court found that Petitioner proved Father was unfit and that

       the best interests of H.A.F. would be served if the trial court dispensed with

       Father’s consent. The trial court found that Father was unfit based on his

       criminal history, lengthy incarceration, drug use, and the heinous nature of his

       most recent felony.
       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016   Page 5 of 14
[12]   Father seems to argue that incarceration alone does not justify a finding that he

       is unfit. Although we may agree that incarceration alone would not justify a

       finding of unfitness, we cannot say that, under the circumstances here, the

       evidence leads to but one conclusion and the trial court reached an opposite

       conclusion. Petitioner presented evidence that Father will be incarcerated until

       H.A.F. is in her forties. Prior to his current incarceration for rape, criminal

       deviate conduct, and impersonating a police officer, Father had been

       incarcerated for other criminal offenses. He also has a history of drug use.

       Given Father’s history, lengthy incarceration, and the nature of his offenses, we

       conclude that, under the totality of the circumstances, Petitioner proved by

       clear and convincing evidence that Father was unfit and that H.A.F.’s best

       interests were served by dispensing with Father’s consent. Consequently, the

       trial court did not err when it determined that Father’s consent to the adoption

       was not required.


[13]   Father also argues that the divesting statute, Indiana Code Section 31-19-15-1,

       prevents Petitioner from adopting H.A.F. We need not address that argument

       because Father’s consent to the adoption is not required. Consent is the

       mechanism by which a party is entitled to say “yea” or “nay.” When consent is

       not required the party has no input into the issues surrounding the

       consequences if the trial court grants the petition for adoption; they are not his

       to raise. However, because the dissent addresses Father’s argument, we will

       briefly do so as well.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016   Page 6 of 14
[14]   Father and the dissent note that a strict reading of Indiana Code Section 31-19-

       15-1 means Petititoner’s adoption of H.A.F. will terminate Mother’s parental

       rights, which is contrary to Mother’s intent and to the best interests of H.A.F.

       Several cases from this court addressing similar situations have held otherwise.

       See In re Adoption of M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003), In re

       Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004), In re Adoption of A.M.,

       930 N.E.2d 613 (Ind. Ct. App. 2010), and In re Adoption of J.T.A., 988 N.E.2d

       1250 (Ind. Ct. App. 2013), trans. denied. The dissent, disagreeing with this line

       of case, would reverse the trial court’s determination that Father’s consent to

       the adoption is not required, presumably on the basis that H.A.F.’s best

       interests would not be served if the petition for adoption were to be granted.


[15]   Indiana Code Section 31-19-9-8(a)(11) is a two-step process to determine if the

       biological parent’s consent, the father in this case, is required. Because the trial

       court found him unfit and found that the best interests of the child would be

       served if the court dispensed with that consent, the next step is to consider the

       adoption itself using the parameters of Indiana Code Section 31-19-11-1. The

       question before the trial court and this court is whether Father’s consent to the

       adoption was necessary. In addressing this question, Father can only argue

       H.A.F.’s best interests as they relate to him and the requirement of his consent.

       The question of the effect of the divesting statute is not yet squarely before this

       court. As we have determined that the trial court correctly found Father’s

       consent to the adoption was not required, he has no interest with respect to

       further proceedings. Cf. Ind. Code § 31-19-5-18 (stating a putative father who


       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016   Page 7 of 14
       fails to timely register waives notice of an adoption proceeding and his consent

       to the adoption is “irrevocably implied”). What the divesting statute says and

       how it should be applied in considering the petition for adoption can no longer

       be raised by Father—assuming the question of preserving Mother’s parental

       rights could ever be raised by Father—and he cannot bootstrap that issue onto

       the separate issue of whether his consent was required.


                                                Conclusion
[16]   The trial court properly found that Father’s consent to the adoption was not

       required. We affirm.


[17]   Affirmed.


       Robb, J., concurs.


       Altice, J., dissents with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016   Page 8 of 14
                                                    IN THE

              COURT OF APPEALS OF INDIANA



       In Re the Adoption of H.A.F.,                             )
                                                                 )
       A.J.F.,                                                   )
                                                                 )
       Appellant,                                                )
                       v.                                        )        No. 71A03-1505-AD-364
                                                                 )
                                                                 )
       A.D.F.,                                                   )
                                                                 )
       Appellee.                                                 )




       Altice, Judge, dissenting.


[18]   I respectfully dissent. As properly acknowledged by the majority, a parent’s

       consent is not required if a petitioner for adoption proves by clear convincing

       evidence that the parent is unfit to be a parent and the best interests of the child

       would be served if the court dispensed with the parent’s consent. See I.C. § 31-

       19-9-8(a)(11)(A), (B). In its analysis, however, the majority looks only to the

       evidence regarding Father’s unfitness and neglects to consider the best interests

       of the child in dispensing with Father’s consent. The best interest

       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016   Page 9 of 14
       determination at this stage is separate from, albeit similar to, consideration of

       the best interests of the child during subsequent adoption proceedings. I believe

       that the determination of whether to dispense with Father’s consent requires

       consideration of Father’s argument in assessing the best interests of H.A.F.

       Thus, I disagree with the majority insofar as it summarily concludes that

       “H.A.F.’s best interests were served by dispensing with Father’s consent.” Slip

       op. at 6.


[19]   Regarding the child’s best interests, Father argues, and I agree, that a strict

       reading of I.C. § 31-19-15-1 would result in not only termination of his parental

       rights, but also termination of Mother’s parental rights if the adoption petition

       is granted. This result would clearly be contrary to H.A.F.’s best interests and

       is unintended by Mother.


[20]   I recognize that this court has addressed Father’s argument regarding I.C. § 31-

       19-15-1 in several previous cases. In each case, this court has refused to apply a

       strict interpretation of the statute. The issue was first addressed in the context

       of same-sex partner adoptions. In In re Adoption of M.M.G.C., 785 N.E.2d 267

       (Ind. Ct. App. 2003), a same-sex partner sought to adopt her partner’s three

       children, who had been previously adopted by the partner. This court held that

       the adoption statutes did not specifically address the issue in the case and that

       common law permitted “a second parent to adopt a child without divesting the

       rights of the first adoptive parent.” M.M.G.C., 785 N.E.2d at 270. The court

       noted that: “Allowing a second parent to share legal responsibility for the

       financial, spiritual, educational, and emotional well-being of the child in a

       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016   Page 10 of 14
       stable, supportive, and nurturing environment can only be in the best interest of

       that child.” Id. at 270-71.


[21]   In M.M.G.C., this court expressly did not “reach the question of whether a

       second-parent adoption would divest all rights of a biological parent with

       respect to the child where the child’s prospective adoptive parent and the child’s

       biological parent are not married to each other.” Id. at 270 n.1. Another panel

       of this court reached that issue, however, in In re Adoption of K.S.P., 804 N.E.2d

       1253 (Ind. Ct. App. 2004). There, a same-sex partner sought to adopt her

       partner’s biological children. That panel agreed that a strict literal reading of

       I.C. § 31-19-15-1 would seem to result in the divestiture of mother’s parental

       rights, “a consequence clearly unintended by the couple.” K.S.P., 804 N.E.2d

       at 1257. The K.S.P. court concluded that, in light of the purpose and spirit of

       Indiana’s adoption laws, “the legislature could not have intended such a

       destructive and absurd result.” Id. They based that decision on the best

       interests of the child and the State’s interest in protecting and promoting the

       welfare of children by expediting their entry into a suitable, stable family unit.

       That panel concluded that where “the prospective adoptive parent and the

       biological parent are both in fact acting as parents, Indiana law does not require

       a destructive choice between two parents.” Id. at 1260. “Allowing

       continuation of the rights of both the biological and adoptive parent, where

       compelled by the best interests of the child, is the only rational result.” Id.


[22]   Then, in In re Adoption of A.M., 930 N.E.2d 613 (Ind. Ct. App. 2010), the

       majority took another leap and allowed a grandfather to adopt his grandchild

       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016   Page 11 of 14
       while the mother (grandfather’s daughter) kept her parental rights. In that case,

       the majority noted that the grandfather and mother were both acting as parents

       to the child and that the adoption was in the child’s best interests.

       Consequently, the majority concluded that the trial court erred by denying the

       grandfather’s uncontested petition to adopt the child. A.M., 930 N.E.2d at 621.


[23]   Similarly, in In re Adoption of J.T.A., 988 N.E.2d 1250, 1252 (Ind. Ct. App.

       2013), trans. denied, a father’s fiancée filed a petition to adopt his child, and the

       trial court denied the petition. On appeal, it was held:

               [I]t is clear that both Father and Fiancée were acting as parents to
               the Child, that this was an intra-family adoption, and that neither
               Fiancée nor Father wished to have Father’s parental rights
               terminated by the adoption. Mother argues that K.S.P. is not on
               point because unlike in that case, here Father and Fiancée could
               have legally married but had simply not yet done so. We
               disagree, and believe that this is too narrow a reading of our
               opinion. It is clear from the policy underlying the divesting
               statute, and the overarching concern for the best interest of the
               child, that it would be absurd and contrary to the intent of the
               legislature to divest Father of his parental rights where he would
               continue to live in a family unit with the Child and parent the
               Child. Father’s parental rights would not have been terminated
               had the adoption been granted.


       J.T.A., 988 N.E.2d at 1253-54 (footnotes omitted).


[24]   I believe the issue presented by Father, upon which our Supreme Court has yet

       to speak, should be revisited by this court. There is no statutory exception to

       divestiture for unmarried individuals operating as a family unit, and I disagree


       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016   Page 12 of 14
       with case law that goes against the plain language of I.C. § 31-19-15-1 to create

       one. The legislature created statutory exceptions to divestiture of a biological

       parent’s rights, one of which is when “the adoptive parent of a child is married

       to a biological parent.” I.C. § 31-19-15-2; see also I.C. § 31-19-15-1. “The

       marriage requirement is not mere surplusage.” In re Infant Girl W., 845 N.E.2d

       229, 251 (Ind. Ct. App. 2006) (Najam, J., dissenting), trans. denied; see also King

       v. S.B., 837 N.E.2d 965 (Ind. 2005) (Dickson, J., dissenting).


[25]   To that end, I agree with Judge Najam’s analysis as expressed in his dissent in

       In re Adoption of A.M.,


               This case cannot be resolved by resorting to a recent line of cases
               that has stretched the adoption statutes beyond their plain
               meaning. Cases interpreting our adoption statutes are not
               common law cases but judicial interpretations of statutes enacted
               by our legislature. Our General Assembly has enacted statutes
               permitting adoptions by single adults, married couples, and
               stepparents. The parents of an adopted child must be married to
               each other, whether [as] joint petitioners, or the petitioner is
               married to a biological or adoptive father or mother of the child.


       Adoption of A.M., 930 N.E.2d at 622 (Najam, J., dissenting) (citations omitted).

       See also Infant Girl W., 845 N.E.2d 229 (Najam, J., dissenting).


[26]   As Judge Najam aptly noted in In re Infant Girl W.:


               Children need parents, and adoption is an unselfish act that
               brings parents together with the children who need them.
               Adoption should be encouraged, both for the good of the parties
               and for society at large. But adoption is a privilege, not a right.
               The terms and conditions of adoption represent policy decisions
       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016   Page 13 of 14
               vested in the legislature. It is the legislature’s prerogative to
               establish what policies are to be furthered under the adoption
               statutes, including whether an unmarried couple may adopt.


       845 N.E.2d at 251 (Najam, J., dissenting) (footnote omitted).


[27]   While I agree that I.C. § 31-19-15-1 would not preclude Petitioner from

       adopting H.A.F., the statute dictates that Petitioner’s adoption would terminate

       Mother’s parental rights. In order to protect H.A.F.’s best interests, Father’s

       concern about application of the divesting statute must be addressed. I would

       reverse the trial court’s determination that Father’s consent to the adoption of

       H.A.F. was not required.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1505-AD-364| March 23, 2016   Page 14 of 14
