MEMORANDUM DECISION                                                               FILED
                                                                             Mar 20 2017, 10:04 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                  CLERK
this Memorandum Decision shall not be                                         Indiana Supreme Court
                                                                                 Court of Appeals
regarded as precedent or cited before any                                          and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Julianne L. Fox                                         Craig Goedde
Evansville, Indiana                                     Johnson, Carroll, Norton, Kent &
                                                        Goedde, P.C.
                                                        Evansville, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re Adoption of L.W. (Minor                           March 20, 2017
Child)                                                  Court of Appeals Case No.
                                                        82A01-1610-AD-2314
R.W. (Father),                                          Appeal from the Vanderburgh
Appellant-Respondent,                                   Superior Court
                                                        The Honorable Renee Ferguson,
        v.                                              Magistrate
                                                        Trial Court Cause No.
G.B. (Stepfather),                                      82D04-1506-AD-56
Appellee-Petitioner




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1610-AD-2314 | March 20, 2017            Page 1 of 4
                                             Case Summary
[1]   R.W. (“Father”) appeals the trial court’s order granting the petition filed by

      G.B. (“Stepfather”) to adopt Father’s biological son, L.W. Father argues that

      the trial court erred in finding that his consent to the adoption was not required

      based on a reason not alleged in the adoption petition. We hold that Father has

      waived this argument and therefore affirm.


                                 Facts and Procedural History
[2]   In 2005, L.W. was born to Father and D.B. (“Mother”). In 2010, Father was

      convicted of molesting his daughter and received a sixty-year sentence. In

      February 2015, Stepfather married Mother. In June 2015, Stepfather filed a

      petition to adopt L.W. In an amended petition, Stepfather alleged that Father’s

      consent to the adoption was not required pursuant to Indiana Code Section 31-

      19-9-8 because, for a period of at least one year, he failed without justifiable

      cause to communicate significantly with L.W. when able to do so and

      knowingly failed to provide for L.W.’s care and support when able to do so as

      required by law or judicial decree.


[3]   At the hearing on the petition, Father was represented by counsel and appeared

      by telephone from prison. Without objection, Stepfather testified about

      Father’s convictions, asked the trial court to take judicial notice of the criminal

      proceedings, and provided the court with copies of the chronological case

      summaries. Also without objection, Mother testified that Father’s victim was

      L.W.’s half sister. The trial court called a bench conference and directed


      Court of Appeals of Indiana | Memorandum Decision 82A01-1610-AD-2314 | March 20, 2017   Page 2 of 4
counsel’s attention to Indiana Code Section 31-19-9-10, which states in relevant

part that “[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

the filing of a petition for adoption for” certain crimes, including class A felony

child molesting; “(2) the child or the child’s sibling, half-blood sibling, or step-

sibling of the parent’s current marriage 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.” The court noted

that Father had been convicted of and was incarcerated for class A felony child

molesting at the time the petition was filed, that the victim was L.W.’s half-

blood sibling, and that Father had been “on the phone, he’s been given notice

all the way along[.]” Tr. at 40. The court stated,

        So I can tell you right now, as soon as we finish Mother’s
        testimony, I’m going to be ready to conclude that dispensing with
        [Father’s] consent is in the child’s best interest, given the nature
        of his crimes against children and the fact that it was [L.W.’s]
        half-sister. So I just wanted to let you know, Gentlemen, where
        I’m heading. And you most certainly can have time to talk with
        your client about that, [Father’s counsel].


Id. Father’s counsel did not object to the court’s stated intentions. The court

allowed counsel to confer privately with Father and recalled Mother to the

stand. Father then testified, and the parties made closing arguments. At the

conclusion of the hearing, the court found that Father’s consent to the adoption

was not required pursuant to Indiana Code Section 31-19-9-10 and that it was



Court of Appeals of Indiana | Memorandum Decision 82A01-1610-AD-2314 | March 20, 2017   Page 3 of 4
      in L.W.’s best interests to be adopted by Stepfather. The court later issued a

      written order to this effect. This appeal ensued.


                                     Discussion and Decision
[4]   Father argues that the trial court erred in finding that his consent to the

      adoption was not required pursuant to Indiana Code Section 31-19-9-10

      because Stepfather did not plead that basis for dispensing with his consent in his

      adoption petition. We hold that Father waived this argument by failing to

      object at trial. See Linenburg v. Linenburg, 948 N.E.2d 1193, 1197 (Ind. Ct. App.

      2011) (“A party may not sit idly by, permit the court to act in a claimed

      erroneous manner, and subsequently attempt to take advantage of the alleged

      error.”) (citation omitted). Therefore, we affirm.


[5]   Affirmed.


      Riley, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1610-AD-2314 | March 20, 2017   Page 4 of 4
