MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any
                                                                         Apr 09 2019, 9:53 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Katherine N. Worman                                      E. Lee Veazey
Evansville, Indiana                                      Massey Law Offices, LLC
                                                         Evansville, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Adoptions of                        April 9, 2019
V.B. and S.B. (Minor Children),                          Court of Appeals Case No.
                                                         18A-AD-2566
D.G. (Father),                                           Appeal from the Vanderburgh
                                                         Superior Court
Appellant-Respondent,
                                                         The Honorable Brett J. Niemeier,
        v.                                               Judge
                                                         The Honorable Renee A.
D.H. (Adoptive Father),                                  Ferguson, Magistrate

Appellee-Petitioner.                                     Trial Court Cause Nos.
                                                         82D04-1804-AD-71
                                                         82D04-1804-AD-76



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-AD-2566 | April 9, 2019                    Page 1 of 11
                                Case Summary and Issue
[1]   The juvenile court granted a petition by D.H. (“Adoptive Father”), the spouse

      of A.H., the biological mother of S.B. and V.B. (collectively, “the Children”), to

      adopt the Children, finding the consent of D.G., the Children’s biological

      father, was not required. D.G. appeals the juvenile court’s order granting the

      petition for adoption, raising one issue for our review, which we restate as

      whether the juvenile court erred in concluding D.G.’s consent to the adoption

      was not required. Concluding the juvenile court did not err and D.G.’s consent

      was not required, we affirm.



                            Facts and Procedural History
[2]   The Children, S.B. and V.B., were born on April 24, 2003, and December 13,

      2005, respectively. Twelve years later, on December 19, 2017, D.G. pleaded

      guilty to two counts of sexual misconduct with a minor and two counts of

      incest, all four Level 4 felonies. D.G. was sentenced on March 1, 2018, to an

      aggregate sentence of twelve years with eight years to be executed at the

      Indiana Department of Correction and the remaining four years to be served on

      probation.


[3]   S.B. was the victim of D.G.’s crimes and by the terms of the plea agreement,

      D.G. is prohibited from having contact with S.B., he must stay off the property

      where S.B. or her family resides, and he must register as a sex offender. D.G.’s

      earliest possible release date is September 19, 2023, at which point S.B. will be


      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2566 | April 9, 2019   Page 2 of 11
      twenty years old and V.B. will be less than two months shy of her eighteenth

      birthday. D.G. will then remain on probation for another four years during

      which time the no contact order remains in effect.


[4]   Adoptive Father filed petitions to adopt the Children on April 16, 2018.

      Adoptive Father alleged therein that D.G. had been “convicted of and is

      currently in prison for a conviction for [incest] and pursuant to [Indiana Code

      section] 31-19-9-10(1)(G) his consent is not required for this adoption petition.”

      Appellant’s Amended Appendix, Volume II at 13, 74. A.H. consented to the

      adoption, stating that Adoptive Father has “provided financial support,

      emotional support, and love” to the Children since 2016. Id. at 16, 84.


[5]   D.G. objected to the adoption on June 25 and D.G. was appointed counsel. A

      consent hearing was conducted on August 21, and at the close of testimony, the

      juvenile court found:


              Alright, at this time the Court finds that [D.G.’s] consent is not
              required. . . . And the Court must further find that dispensing
              with the parent’s consent to adoption is in the child’s best
              interest. Given [D.G.’s] propensity for crimes of a sexual nature
              and the fact that he continues and will continue for the near
              future in the Indiana Department of Correction, and given the
              nature of the crime against [S.B.] and its repercussions on [V.B.],
              the Court finds that it is in the best interest of the [C]hildren that
              they be adopted by [Adoptive Father].




      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2566 | April 9, 2019   Page 3 of 11
Transcript, Volume II at 29-30. On September 12, 2018, the juvenile court

entered adoption decrees as well as findings of fact and conclusions of law1 on

the issue of whether D.G.’s consent to the adoption was necessary:


        Findings of Fact


        3.       [D.G.] is the birth father of [V.B. and S.B.], and he does
                 not consent to this adoption Petition and he filed an
                 objection to this adoption petition.


        ***


        5.       [D.G.] is currently in the Indiana Department of
                 Correction (IDOC) as a result of pleading guilty in [a
                 criminal case] where [D.G.] was charged with five counts
                 of violating IC 35-42-4-9(e) and five counts of IC 35-46-1-
                 3, all counts against his daughter [S.B.], [V.B.’s] sister.
                 [D.G.] entered into a plea agreement where he pled guilty
                 to two counts of IC 35-46-1-3 and two counts of IC 35-42-
                 4-9(e).


        6.       According to the [IDOC] website and confirmed by
                 [D.G.’s] testimony, [D.G.’s] current scheduled release date
                 is September 19, 2023. The plea agreement also requires
                 four (4) years of probation and includes a no contact order
                 for [S.B.] and that he must stay off the property where
                 [S.B.] or her family reside which includes [V.B.].




1
  The juvenile court entered separate Court’s Findings of Fact, Conclusions of Law and Ruling on Whether
Birth Father’s Consent is Required for both S.B. and V.B. See Appealed Order at 4-6; 10-13. With few
exceptions, the two documents are materially identical, and we have therefore combined the two documents
for the sake of brevity.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-2566 | April 9, 2019                Page 4 of 11
         7.       According to [D.G.’s] own testimony, he also has had
                  previous a conviction for sex abuse in Illinois around 2005
                  and a conviction for aggravated battery around 2010.
                  [D.G.] served time in prison for both convictions.


         8.       [D.G.] was also arrested in Indiana for failure to register as
                  a sex offender, but [D.G.] explained in his testimony
                  because he was already in jail for the aggravated battery
                  that had resulted in a knife injury to another person that
                  eventually these charges were dismissed when Indiana
                  found out [D.G.] was in jail in Illinois.


         9.       [A.H.] testified that the adoption petition was filed as a
                  result of her daughter asking if the Petitioner, [Adoptive
                  Father], could adopt her.


         10.      [A.H.] testified that [Adoptive Father’s] relationship with
                  [V.B.] is close and that she believes it is in [V.B.’s] best
                  interest for [Adoptive Father] to adopt [V.B.].


         11.      The Court took judicial notice of all Indiana criminal
                  records for [D.G.].2


         Conclusions


         1.       [Adoptive Father] alleges that [D.G.’s] consent is not
                  required pursuant to IC 31-19-9-10(1)(G), (2), and (3).




2
 The order pertaining to S.B. includes an additional finding, namely: “[S.B.] being 15 years of age signed a
consent to the adoption which is filed with the court.” Appealed Order at 11, ¶ 11.

Court of Appeals of Indiana | Memorandum Decision 18A-AD-2566 | April 9, 2019                     Page 5 of 11
              2.       The burden is with [Adoptive Father] to establish by clear
                       and convincing evidence that the child’s best interest is
                       served by the court dispensing with [D.G.’s] consent.


              3.       [D.G.], biological father to [S.B. and V.B.], has pled guilty
                       to IC 35-46-1-3 for committing incest against [S.B., V.B.’s
                       sister,] and a judgment was entered against him.


              4.       Pursuant to IC 31-19-9-10(1)(G), (2), and (3), this court
                       finds that the [Adoptive Father] has met his burden by
                       clear and convincing evidence that: 1) [D.G.’s] consent is
                       not required pursuant to [D.G.’s] conviction of IC 35-46-1-
                       3, when the victim is a child of the offender [or the child’s
                       sister is the victim of the offender], and 2) the court
                       determines it is in the child’s best interest to dispense with
                       [D.G.’s] consent.


      Appealed Order at 4-6; 10-13. D.G. now appeals.



                                 Discussion and Decision
                                      I. Standard of Review
[6]   We review the entry of an adoption decree by considering 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 juvenile

      court’s decision. Matter of Adoption of C.J., 71 N.E.3d 436, 442 (Ind. Ct. App.

      2017). We will overturn the juvenile court’s decision only when the evidence

      leads to one conclusion and the juvenile court reached the opposite conclusion.

      In re Adoption of S.O., 56 N.E.3d 77, 80 (Ind. Ct. App. 2016). “The decision of


      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2566 | April 9, 2019   Page 6 of 11
      the juvenile 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).


[7]   Moreover, where, as here, the juvenile court enters specific findings of fact and

      conclusions thereon, we apply a two-tiered standard of review: we first

      determine whether the evidence supports the findings and second, whether the

      findings support the judgment. In re the Adoption of T.W., 859 N.E.2d 1215,

      1217 (Ind. Ct. App. 2006). “The [juvenile] court’s findings are clearly

      erroneous if the record lacks any evidence or reasonable inferences to support

      them [and] [a] judgment is clearly erroneous when it is unsupported by the

      findings of fact and the conclusions relying on those findings.” Id.


                            II. Best Interests of the Children
[8]   Pursuant to Indiana Code section 31-19-11-1(a), a juvenile court shall grant a

      petition for adoption if the adoption is in the child’s best interests, the petitioner

      is sufficiently capable of rearing and supporting the child, and proper consent, if

      required, has been given. Indiana Code section 31-19-9-10 provides:


               A court shall determine that consent to adoption is not required
               from a parent if:

                       (1) The parent is convicted of and incarcerated at the time
                           of filing a petition for adoption for:

                           ***

                               (G) incest (IC 35-46-1-3) as a:


      Court of Appeals of Indiana | Memorandum Decision 18A-AD-2566 | April 9, 2019   Page 7 of 11
                                         ***

                                         (ii) Level 4 felony, for a crime committed
                                         after June 30, 2014;

                                ***

                        (2) the child or child’s sibling . . . is the victim of the
                        offense; and

                        (3) after notice to the parent and a hearing, the court
                        determines that dispensing with the parent’s consent to
                        adoption is in the child’s best interests.


[9]    Here, it is uncontested that D.G. was convicted of incest as a Level 4 felony,

       D.G. was incarcerated at the time the petitions for adoption were filed, S.B.

       was the victim of the offense, and V.B. was S.B.’s sibling. The only remaining

       question to determine whether D.G.’s consent to the adoption was required,

       therefore, is whether dispensing with D.G.’s consent was in the Children’s best

       interests and D.G. now “challenges the [juvenile court’s] determination that

       dispensing with [his] consent to the adoption is in the [Children’s] best

       interest.” Appellant’s Brief at 8.


[10]   Notably however, where a petitioner seeks a determination that a parent’s

       consent to an adoption is not required, a juvenile court is required to conduct

       two, separate evaluations of the child’s best interests. First, as discussed above,

       the juvenile court must determine that dispensing with the parent’s consent to

       the adoption is in the child’s best interests. See Ind. Code § 31-19-11-10(3).

       Then, having concluded the parent’s consent to the adoption is not required,

       “the court must still determine whether adoption is in the child’s best interests.”

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2566 | April 9, 2019   Page 8 of 11
       In re Adoption of M.S., 10 N.E.3d 1272, 1281 (Ind. Ct. App. 2014) (citing Ind.

       Code § 31-19-11-1(a)(1)).


[11]   Despite framing the issue as a challenge to the juvenile court’s finding that

       dispensing with his consent to the adoption was not in the Children’s best

       interests, D.G. fails to advance such an argument. Indiana Appellate Rule

       46(A)(8)(a) provides that the argument section of the appellant's brief must

       “contain the contentions of the appellant on the issues presented, supported by

       cogent reasoning[,]” along with citations to the authorities, statutes, and parts

       of the record relied upon, and a clear showing of how the issues and

       contentions in support thereof relate to the particular facts under review.

       Because D.G. has failed to do so, the argument has been waived. See, e.g., Reed

       v. Reid, 980 N.E.2d 277, 297 (Ind. 2012) (“Failure to comply with this rule

       results in waiver of the argument on appeal.”).


[12]   Instead, D.G. argues that A.H.’s behavior is “also detrimental to the Children’s

       mental development[,]” that A.H. has been married several times previously,

       and that A.H. had only been married to Adoptive Father for “three . . . months

       at the time the adoption petitions were filed[.]” Appellant’s Br. at 9. His

       underlying concern, he explains, is that “the marriage to [Adoptive Father]

       [will] not last,” and “the number of ‘dads’ that [have] been in the Children’s

       lives.” Id. We therefore view D.G.’s argument as a challenge to the juvenile

       court’s conclusion that adoption was in the Children’s best interests pursuant to

       Indiana Code section 31-19-11-1(a)(1), not whether dispensing with his consent

       was in the Children’s best interests pursuant to Indiana Code section 31-19-9-

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2566 | April 9, 2019   Page 9 of 11
       10(3). Regardless of which conclusion D.G. is challenging, however, we find

       his arguments unpersuasive.


[13]   The primary concern in every adoption proceeding is the best interests of the

       child. In re Adoption of M.L., 973 N.E.2d 1216, 1224 (Ind. Ct. App. 2012).

       Although “[t]he adoption statute does not provide guidance for which factors to

       consider when determining the best interests of a child in an adoption

       proceeding . . . we have noted that there are strong similarities between the

       adoption statute and the termination of parental rights statute in this respect.”

       In re Adoption of M.S., 10 N.E.3d at 1280. In termination cases, we have held

       the juvenile court is required to look to the totality of the evidence to determine

       the best interests of a child. Id. Relevant factors include a parent’s historical

       and current inability to provide a suitable environment for the child as well as

       the child’s need for permanency and stability. Id.


[14]   Here, the juvenile court concluded adoption was in the Children’s best interests,

       finding that Adoptive Father had a close relationship with the Children and that

       the Children had asked to be adopted by Adoptive Father. A.H. testified

       “[Adoptive Father] takes amazing care of the kids. He’s a completely different

       father to ‘em [sic] than anybody that they’ve ever had in their life. He cares for

       them. They adore him.” Tr., Vol. II at 27. Moreover, D.G. was incarcerated

       at the filing of the adoption petitions and he will remain incarcerated until only

       a few months before the youngest child’s eighteenth birthday. Even then, a no

       contact order will prohibit D.G. from contacting the Children for an additional

       four years while he serves the remainder of his sentence on probation.

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2566 | April 9, 2019   Page 10 of 11
       Adoption clearly serves the Children’s need for permanency and stability.

       Finally, there is no question that D.G. has negatively impacted the Children’s

       mental and emotional development and D.G. has failed to offer any reason to

       suspect this will change. We therefore conclude the record supports the

       juvenile court’s conclusion that D.G.’s consent to the adoption of the Children

       was not required and adoption of the Children by Adoptive Father was in the

       Children’s best interests.



                                               Conclusion
[15]   The juvenile court did not err in granting the adoption over D.G.’s objection

       because D.G.’s consent was not required. Accordingly, the judgment of the

       juvenile court is affirmed.


[16]   Affirmed.


       Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-AD-2566 | April 9, 2019   Page 11 of 11
