MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   Dec 03 2015, 5:56 am
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
Amber M. Neal                                            Gregory F. Zoeller
Muncie, Indiana                                          Attorney General of Indiana

                                                         Robert J. Henke
                                                         Deputy Attorney General

                                                         Abigail R. Recker
                                                         Deputy Attorney General



                                           IN THE
    COURT OF APPEALS OF INDIANA

A.M.,                                                    December 3, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         38A02-1506-JC-620
        v.                                               Appeal from the Jay Circuit Court
                                                         The Honorable Brian Hutchison,
Department of Child Services,                            Judge
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         38C01-1206-JC-24



Altice, Judge.


                                         Case Summary




Court of Appeals of Indiana | Memorandum Decision 38A02-1506-JC-620 | December 3, 2015         Page 1 of 8
[1]   A.M. (Father) appeals from the trial court’s denial of his request to withdraw

      his consent to adoption of C.M. and N.M. (collectively, the Children).


[2]   We affirm.


                                             Facts & Procedural History


[3]   On June 15, 2012, the Department of Child Services (DCS) removed the

      Children from their home and filed a petition alleging the Children to be in

      need of services (CHINS) due to lack of parental supervision. The Children

      were adjudicated CHINS and placed with their maternal step-grandfather. The

      permanency plan was reunification of the Children with R.H. (Mother) and

      thus, Mother was ordered to participate in services.1 Father appeared in person

      at the initial CHINS hearing held July 10, 2012, and for a fact-finding hearing

      on August 27, 2012. On September 19, 2012, Father was convicted of class C

      felony habitual traffic violator and sentenced to two years incarceration. Father

      appeared at a subsequent dispositional hearing via video conference.


[4]   On November 8, 2012, the court entered an order for parenting time which

      provided that Father, who was then incarcerated in the Jay County Jail, should

      receive parenting time via video conferencing at least once every two weeks.

      On April 24, 2013, the trial court modified its parenting-time order to permit

      Father one two-hour visit every six weeks while he was incarcerated at the




      1
          It does not appear that, at least initially, a parental participation order was entered with respect to Father.


      Court of Appeals of Indiana | Memorandum Decision 38A02-1506-JC-620 | December 3, 2015                    Page 2 of 8
      Department of Correction. In April 2014, the court ordered that Father be

      provided services upon his release from incarceration.2


[5]   On September 8, 2014, DCS reported that Father


                 has minimally participated in services during this reporting
                 period. He has submitted to random drug screens and has
                 completed a substance abuse assessment. He has canceled
                 appointments due to “working” or having to be present at his
                 Uncle’s Dr’s appointments. [Father] has refused two drug
                 screens for [the Family Case Manager], reporting at one point he
                 would wait until the following week when it would be clean.
                 [Father] has tested positive for Methamphetamine one time on
                 a[n] oral drug screen through DCS. He has been positive two
                 other times for his parole officer and admitted to using pain pills
                 that he is not prescribed. [Father] has been arrested twice during
                 this reporting period. He was arrested for battery and
                 strangulation as well as invasion of privacy.


      Appellant’s Appendix at 432. Father was subsequently incarcerated on a parole

      violation because of his arrest. On September 23, 2014, the court declined to

      order additional services for Father and revoked Father’s rights to parenting

      time. The court also changed the permanency plan for the Children from

      reunification to adoption.


[6]   On October 28, 2014, while still incarcerated, Father executed consents to the

      adoption of the Children.3 At the time Father signed the consents, a petition to




      2
          The record indicates that Father was released from incarceration on April 24, 2014.
      3
          Mother also signed separate consents to the adoption of the Children.


      Court of Appeals of Indiana | Memorandum Decision 38A02-1506-JC-620 | December 3, 2015    Page 3 of 8
      terminate his parental rights to the Children was pending. 4 Notwithstanding

      the executed consents, Father continued to write letters to the Children and

      requested a “goodbye” visit. Transcript of May 12, 2015 Hearing at 10. On

      February 17, 2015, DCS permitted Father to visit with C.M.5 During that visit,

      Father learned that the Children were not receiving the letters he had been

      writing.


[7]   Almost six weeks later, on March 30, 2015, Father filed a pro se request to

      withdraw his consent to the adoption of the Children. The court held a hearing

      on April 24, 2015, at which Father, who remained incarcerated, appeared by

      video conference and unrepresented by counsel. Father presented evidence in

      support of his request to withdraw his consent. Father then requested that

      counsel be appointed. The court granted Father’s request and set the matter for

      further hearing on May 12, 2015. Additional evidence was presented to the

      court at the May 12 hearing. That same day, the court issued a written order

      denying Father’s request to withdraw his consent to the adoption of the

      Children. The court also concluded that Father’s request to withdraw his

      consent was untimely and that Father “failed to present any evidence

      supporting a finding that allowing him to withdraw his consent was in the




      4
       The FCM informed Father that if he did not execute the consents, DCS was going to move forward with
      proceedings to involuntarily terminate his parental rights.
      5
          N.M. refused to attend the visit with Father.


      Court of Appeals of Indiana | Memorandum Decision 38A02-1506-JC-620 | December 3, 2015      Page 4 of 8
       children’s best interests.” Id. at 603. Father now appeals. Additional facts will

       be provided as necessary.


                                           Discussion & Decision


[8]    We begin by noting that the party seeking to withdraw consent to adoption

       must prove their case by clear and convincing evidence. See Ind. Code § 31-19-

       10-0.5. Where a party has the burden of proof and an adverse judgment is

       entered, if the party pursues an appeal, he or she does so from a negative

       judgment. J.W. v. Hendricks County Office of Family & Children, 697 N.E.2d 480,

       481 (Ind. Ct. App. 1998). A party appealing from a negative judgment must

       show that the evidence points unerringly to a conclusion different from that

       reached by the trier of fact. Id. at 481-82. We will reverse a negative judgment

       only if the decision of the trial court is contrary to law. Id. at 482. In

       determining whether a negative judgment is contrary to law, we neither reweigh

       evidence nor judge witness credibility. Id. Rather, we consider only the

       evidence most favorable to the prevailing party together with all reasonable

       inferences flowing therefrom. Id.


[9]    Similarly, in decisions relating to adoptions, we will presume the trial court’s

       decision is correct. In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014). In

       other words, we will not disturb the court’s ruling unless the evidence leads to

       but one conclusion and the trial judge reached the opposite conclusion. Id.


[10]   Father argues that the trial court erred in denying his request to withdraw his

       consents to the adoption of the Children. The gist of Father’s argument is that

       Court of Appeals of Indiana | Memorandum Decision 38A02-1506-JC-620 | December 3, 2015   Page 5 of 8
       his consent was invalid because it was conditioned upon his retaining contact

       with the Children. For a consent to adoption to be valid, it must be shown that

       the parent’s consent was voluntary. Matter of Adoption of Topel, 571 N.E.2d

       1295, 1298 (Ind. Ct. App. 1991). A parent’s consent to an adoption is

       voluntary if it is an act of the parent’s own volition, free from duress, fraud, or

       any other consent-vitiating factor, and if it is made with knowledge of the

       essential facts. Id. Further, consent to adoption is invalid where the parent

       retains the right to exercise visitation. Id. at 1299.


[11]   Here, Father testified that he was “misled” by both the attorney representing

       him at the time he executed the consents and the FCM that even if he signed

       the consents to adoption, he “would not be cut out of the kid’s [sic] life, that

       [he] would still be able . . . to write them and call them” after their adoption.

       Transcript of April 24, 2015 Hearing at 6. Father further testified that he was led to

       believe that once he was released from incarceration and he passed a drug

       screen that he “might be able to have some sort of visiting . . . privilege” with

       the Children. Id. Father maintains that had he been advised he would not be

       entitled to any contact with the Children, he never would have signed the

       consents to adoption.


[12]   During the hearings on Father’s motion to withdraw, Father’s attorney at the

       time he signed the consents and the FCM both testified that they had met with

       and advised Father at separate times regarding the ramifications of signing,

       particularly that signing would not guarantee him post-adoption contact. While

       each admitted that they may have indicated that post-adoption contact was a

       Court of Appeals of Indiana | Memorandum Decision 38A02-1506-JC-620 | December 3, 2015   Page 6 of 8
       possibility, both his attorney and FCM testified that they made it clear such

       would only be possible through an agreement with the adoptive parent. The

       court clearly considered Father’s argument and the evidence presented and

       found:


               [d]espite [Father’s] assertions contrary [sic], . . . neither his
               counsel nor the FCM ever made any promise, guarantee, or other
               statement that would lead a reasonable person to believe he was
               certain to have post-adoption contact with the children. On the
               contrary, both informed him that the issue of post-adoption
               contact with the children would only be possible of [sic] the
               parties entered in to a post-adoption agreement or the adoptive
               parent voluntarily allowed same.


       Appellant’s Appendix at 602. We will not second guess the trial court’s

       evaluation of the evidence in this regard. The trial court’s determination that

       Father was not misled such that the validity of his consent was undermined is

       not erroneous.


[13]   We further note that Father’s mistaken belief that he would be able to maintain

       contact with the Children after their adoption does not render his consent

       invalid. Unlike the situation in Topel, here, there was no written agreement that

       “guaranteed visitation.” See Topel, 571 N.E.2d at 1297. Father was advised of

       the consequences of consenting to the adoption of the Children and was never

       guaranteed any sort of post-adoption contact.


[14]   Moreover, we note, as did the trial court, that Father’s request to withdraw his

       consent to the adoption was untimely filed. I.C. § 31-19-10-3(a) provides that a


       Court of Appeals of Indiana | Memorandum Decision 38A02-1506-JC-620 | December 3, 2015   Page 7 of 8
       consent to adoption may be withdrawn not more than thirty days after the

       consent to adoption is signed. Here, Father signed the consents on October 28,

       2014. He did not file his request to withdraw until March 20, 2015, well

       beyond the thirty days.6


[15]   Finding no error, we affirm the trial court’s denial of Father’s request to

       withdraw his consents to the adoption of the Children.


       Judgment affirmed.


       Robb, J., and Barnes, J., concur.




       6
        Even after discovering that his efforts at contact were not fruitful, Father still waited nearly six weeks to file
       his request to withdraw his consents to adoption of the Children.

       Court of Appeals of Indiana | Memorandum Decision 38A02-1506-JC-620 | December 3, 2015                  Page 8 of 8
