                                                                    FILED
                                                               Jan 10 2020, 11:43 am

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court
                        IN THE

 Indiana Supreme Court
            Supreme Court Case No. 20S-AD-5

  In the Matter of the Adoption of C.A.H.,
              A.C.S. (Father),
                   Appellant-Respondent,

                            –v–

       R.S.E. and R.K.E. (Grandparents),
                    Appellees-Petitioners.


                  Decided: January 10, 2020

Appeal from the Morgan Superior Court, No. 55D01-1705-AD-85
             The Honorable Peter R. Foley, Judge

  On Petition to Transfer from the Indiana Court of Appeals,
                      No. 19A-AD-240



                    Per Curiam Opinion
                     All Justices concur.
Per curiam.

   Indiana law allows trial courts to find that a natural parent’s consent to
the adoption of a child is irrevocably implied if the parent fails to
prosecute a motion to contest the adoption “without undue delay.” Ind.
Code § 31-19-10-1.2(g).

   However, a parent’s implied consent to the adoption of a child may not
be based solely on the parent’s failure to appear at a single hearing, absent
further findings to support a failure to prosecute. Accordingly, we reverse
the trial court’s finding that Father’s consent was irrevocably implied in
this matter and remand for further proceedings.


Facts and Procedural History
   C.A.H. (“Child”) was born in 2015 to M.H. (“Mother”)1 and A.C.S.
(“Father”). R.S.E. and R.K.E. (“Grandparents”), Child’s maternal
grandparents, have cared for Child since March 2016. In June 2016,
Grandparents were appointed Child’s guardians, and in May 2017,
Grandparents filed a verified petition to adopt Child. This petition
claimed that Father’s consent to the adoption was unnecessary under
Indiana Code sections 31-19-9-8(a)(1)-(2), 31-19-9-8(a)(11), and 31-19-9-
8(b). Specifically, Grandparents claimed that for a period of at least six
months preceding the filing of the petition, Father had “abandoned and
deserted” Child, and that for a period of at least one year preceding the
filing of the petition, Father had failed to communicate with or provide
financial support for Child. bAppellant’s App. Vol. II, p. 14.

  Father filed a motion contesting the adoption and was appointed
counsel. Father appeared, with his attorney, at an August 2017 pretrial
hearing, and the trial court set a hearing for November on the issue of
whether Father’s consent to the adoption was necessary. But when Father
failed to appear for a deposition in September 2017, Grandparents filed a



1Mother voluntarily terminated her parental rights to Child and does not participate in this
appeal.



Indiana Supreme Court | Case No. 20S-AD-5 | January 10, 2020                        Page 2 of 7
motion to dismiss Father’s motion to contest the adoption for failure to
prosecute. Father responded, indicating that he failed to appear because
he was incarcerated in the Hamilton County Jail, and Grandparents
voluntarily withdrew their motion to dismiss. Shortly thereafter, the
November 2017 hearing on whether Father’s consent was necessary was
vacated and the adoption proceedings were stayed “pending resolution of
the issue of paternity.” App. Vol. II, p. 38.

  In April 2018, the trial court issued orders establishing paternity in
Father and setting the final hearing in the adoption case for June. On the
morning of the final hearing, Father, by counsel, moved to continue,
indicating that the previous day he was released from the Morgan County
Jail “and picked up by Hamilton County” and was therefore unable to
attend. Id. at 43. The trial court continued the hearing to July 18, 2018.

   Father appeared at the July 18 hearing, but when Mother withdrew her
consent to the adoption, the trial court appointed Mother counsel and
continued the final hearing to October 5. Id. at 46-47. On October 4,
Grandparents, by counsel, requested a continuance of all pending matters
to allow them time to obtain other legal counsel, and the hearing was reset
to November 14, 2018. Id. at 53, 55. Before this hearing, Grandparents filed
an unopposed motion to continue, and the final hearing again was reset to
January 4, 2019. Id. at 56, 58.

   Father failed to appear the morning of the final hearing. Although
Father’s counsel informed the court that she had had “multiple” phone
calls with Father the day before and he had indicated he would attend, the
trial court denied her oral motion for a continuance. Tr. Vol. II at 33, 35.
The trial court then entered a decree of adoption in which it found that
“Natural father [ ] fails to appear. The Court finds [Father’s] consent is not
necessary. See Ind. Code Sec. 31-19-10-1.2. The rights of the natural father
[ ] are hereby terminated.” App. Vol. II, p. 93. Father filed a Trial Rule
60(B) motion for relief from judgment, indicating that he overslept on
January 4 but “still appeared at the courthouse during the scheduled
hearing time.” The trial court denied this motion. Id. at 99.

   In a divided opinion, the Court of Appeals affirmed. Matter of Adoption
of C.A.H., 132 N.E.3d 403 (Ind. Ct. App. 2019). The majority found that this


Indiana Supreme Court | Case No. 20S-AD-5 | January 10, 2020          Page 3 of 7
case was similar to K.S. v. D.S., 64 N.E.3d 1209 (Ind. Ct. App. 2016), trans.
not sought, which affirmed the trial court’s finding that the birth mother’s
consent to adoption was irrevocably implied due to her failure to appear
at two hearings and her failure to maintain contact with her attorney.
Judge Vaidik dissented, contending that the majority opinion sets the bar
for finding implied consent in adoption cases “too low,” and would
remand the case to allow Father to contest Grandparents’ failure-to-
support and failure-to-communicate allegations. 132 N.E.3d at 409.

  We now grant transfer, thereby vacating the Court of Appeals opinion.
Ind. Appellate Rule 58(A).


Discussion and Decision
   “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 judge reached an opposite conclusion.” In re Adoption of T.L.,
4 N.E.3d 658, 662 (Ind. 2014) (cleaned up).

   Indiana Code section 31-19-10-1.2(g)2 provides that “[i]f a court finds
that the person who filed the motion to contest the adoption is failing to
prosecute the motion without undue delay, the court shall dismiss the
motion to contest with prejudice, and the person’s consent to the adoption
shall be irrevocably implied.”

   As to Father, the trial court’s decree of adoption cited to only this
provision—and the fact that Father failed to appear at the final hearing—
in concluding that Father’s consent to Child’s adoption was not required.
We therefore must decide whether Father’s failure to appear at the
January 4, 2019 final hearing constituted a “fail[ure] to prosecute the
motion without undue delay[.]”




2K.S. v. D.S. relied on a different (but functionally identical) statute, Indiana Code section 31-
19-9-18, and neither party argues that K.S. can be distinguished on this basis.



Indiana Supreme Court | Case No. 20S-AD-5 | January 10, 2020                            Page 4 of 7
   First, we note that Father did appear at the first continued final hearing
on July 18, 2018, but when Mother withdrew her consent to the adoption,
the hearing was continued to October 5. This hearing then was continued
two more times at Grandparents’ request.

   We also note that, on the morning of January 4, 2019, Grandparents’
counsel and the trial court referred to Father’s failure to appear as a basis
to find his implied consent and as a basis for default. After Father’s
counsel moved to continue the hearing, the following colloquoy took
place:

   [GRANDPARENTS’ COUNSEL]: Your honor, on behalf of my clients,
   we object to the continuance. [Father] was aware of the hearing date.
   This matter has been pending since May of 2017. So, it’s been a very
   long time. He’s appeared at other proceedings. Counsel has informed
   him of the hearing date. He was served. This hearing date has been
   pending for quite some time. We ask that we proceed in default …
   pursuant to the Indiana Rules of Trial Procedure and Indiana Code 31-
   19-10-1.2. And I would also note it’s 10:17 on the clock.

   THE COURT: Right. Well, as far as a continuance, there doesn’t appear
   to be any cause shown by the natural father as to why he’s failed to
   appear. By the acknowledgment of [Father’s counsel], she’s had recent
   contact with him and has made appointments, so there’s no known
   cause. With that, we will deny the Motion for Continuance, and move
   forward and default [Father]. There is a citation, I believe …

   [GRANDPARENTS’ COUNSEL]: In the Decree that I provided, Indiana
   Code 31-19-10-1.2 subparagraph g.

Tr. Vol. II, p. 34.

   A few moments later, the trial court stated its intention to “make the
finding as requested by Grandparents. Today is the date for the hearing.
And there is no showing of cause for [Father’s] failure to appear. So this is
an undue delay, as found under subsection g of the statute, and the Court
will then find that his consent has been irrevocably implied for failure to
prosecute his … what amounts to the objection to the adoption.” Id. at 35.




Indiana Supreme Court | Case No. 20S-AD-5 | January 10, 2020          Page 5 of 7
   In civil matters, a trial court may enter a default judgment against a
party for a failure to appear at a hearing or file responsive pleadings. Ind.
Tr. R. 55. And while a parent’s interest in the care, custody, and control of
his child is “perhaps the oldest of the fundamental liberty interests,” that
parent’s non-participation in adoption or child welfare proceedings may
still result in the involuntary termination of parental rights. In re C.G., 954
N.E.2d 910, 923 (Ind. 2011), quoting Troxel v. Granville, 530 U.S. 57, 65, 120
S.Ct. 2054, 147 L.Ed.2d 49 (2000); Termination of Parent-Child Relationship of
I.B. v. Ind. Dep’t of Child Services, 933 N.E.2d 1264, 1270-71 (Ind. 2010); K.S.,
supra. Within this framework, the General Assembly has created several
means by which a parent’s consent to the adoption of a child may be
irrevocably implied, including the parent’s failure to timely prosecute a
motion to contest the adoption.

   But Father’s failure to attend the final hearing—one that had been
rescheduled once at his request and three times at the request of other
parties—is insufficient to overcome the important liberty interests at stake
by finding him in default. Father’s failure to appear at a single hearing
also is insufficient to support a finding of implied consent when he
appeared at other hearings, maintained contact with his attorney, and
otherwise participated in the proceedings. See L.G. v. S.L. 76 N.E.3d 157,
170 (Ind. Ct. App. 2017), summarily aff’d in part, 88 N.E.3d 1069 (Ind. 2018)
(holding that the dismissal of a motion to contest based solely on the
parent’s failure to appear at a deposition was unwarranted given the
fundamental liberty interests at stake). We agree with Judge Vaidik that
affirming the trial court’s judgment impermissibly lowers the bar for
finding implied consent in adoption cases. See C.A.H., 132 N.E.3d at 409.

  Finally, we note that Grandparents’ verified petition alleged that
Father’s consent to Child’s adoption was unnecessary because he had
abandoned Child for at least six months preceding the petition’s filing;
failed without justifiable cause to communicate significantly with Child;
and failed to provide for Child’s care and support when able to do so.
App. Vol. II, p. 14. This opinion does not resolve these claims, and our
reversal of the trial court’s order does not mean that Father necessarily
will succeed in rebutting these allegations on remand; it simply provides
him the opportunity to try.


Indiana Supreme Court | Case No. 20S-AD-5 | January 10, 2020            Page 6 of 7
Conclusion
   A parent’s implied consent to the adoption of a child may not be based
solely on the parent’s failure to appear at a single hearing.

   There may be a situation, as in K.S., where a finding of implied consent
can be supported by a parent’s failure to appear at the final hearing as part
of an overall failure to advance a motion to contest an adoption. But this is
not the case here. Father appeared at the initial final hearing before it was
rescheduled, responded to pleadings, and maintained communication
with his attorney throughout the proceedings. Under these circumstances,
K.S. is inapposite.

   We reverse the judgment of the trial court and remand for a hearing on
the merits of Father’s motion to contest the adoption.


All Justices concur.



ATTORNEY FOR APPELLANT, FATHER
Alexander W. Robbins
The Law Office of Alex Robbins
Bedford, Indiana

ATTORNEY FOR APPELLE ES, GRANDPARENTS
Glen E. Koch, II
Boren, Oliver & Coffey, LLP
Martinsville, Indiana




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