MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                 Jun 19 2018, 10:03 am
regarded as precedent or cited before any                                  CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES
Peter A. Kenny                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Robert J. Henke
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana
                                                         Natalie N. Chavis
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In Re the Adoption of R.A.F.                             June 19, 2018

J.H. and W.N.,                                           Court of Appeals Case No.
                                                         49A02-1711-AD-2568
Appellants-Petitioners,
                                                         Appeal from the Marion Superior
        v.                                               Court
                                                         The Honorable Steven R.
Indiana Department of Child                              Eichholtz, Judge
Services,                                                Trial Court Cause No.
                                                         49D08-1511-AD-36578
Appellee-Intervenor,

and

D.F.,




Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018           Page 1 of 9
      Appellee-Cross Petitioner.




      Riley, Judge.


                                STATEMENT OF THE CASE
[1]   Appellants-Petitioners, J.H. and W.N. (Maternal Grandparents), appeal the

      trial court’s denial of their petition to adopt R.A.F. (Child).


[2]   We affirm.


                                                    ISSUE
[3]   Maternal Grandparents present us with three issues, which we consolidate and

      restate as the following single issue: Whether the consent of the Department of

      Child Services (DCS) was irrevocably implied when it failed to contest

      Maternal Grandparents’ petition to adopt the Child within thirty days of being

      served with the notice of Maternal Grandparents’ petition.


                      FACTS AND PROCEDURAL HISTORY
[4]   On October 9, 2013, DCS received a report that the Child’s family “home was

      very dirty, smelled, dirty clothes, and dirty dishes everywhere. The report

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018   Page 2 of 9
      stated there are bed bugs crawling over the home.” (Transcript Vol. IV, Exh.

      1). Additionally, Child’s mother (Mother) had a warrant for a probation

      violation for a Class D felony theft. On February 18, 2014, the Child, born on

      March 29, 2013, was adjudicated a child in need of services (CHINS) after

      Mother admitted to the allegations and the Child’s father (Father) waived the

      factfinding. The dispositional decree was issued on March 18, 2014. By

      October 2014, the Child’s parents were out of compliance with their court-

      ordered services and had failed to address their respective substance abuse

      issues. Due to the parents’ noncompliance, DCS requested the trial court to

      change the Child’s permanency plan from reunification to adoption, with the

      plan being for Appellee-Cross-Petitioner, D.F. (Paternal Grandmother) to adopt

      the Child, who had been living with Paternal Grandmother since November

      2013 when she was approximately eight months old.


[5]   On November 5, 2015, Maternal Grandparents filed their verified petition to

      adopt the Child. Attached to their petition were parental consents, executed by

      both Mother and Father. Maternal Grandparents had adopted Child’s older

      biological sibling in 2012. On January 5, 2016, Paternal Grandmother filed a

      cross-petition for adoption of the Child. Both DCS and the Child’s Guardian

      Ad Litem supported Paternal Grandmother’s decision to adopt.


[6]   On March 14, 2016, Maternal Grandparents filed a petition “For

      Determination that the Consent of the [DCS] is Irrevocably Implied without

      further Court Action.” (Appellants’ App. Vol. II, p. 18). In their petition,

      Maternal Grandparents alleged that if DCS wished to contest Maternal

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018   Page 3 of 9
      Grandparents’ petition to adopt, DCS was statutorily required to file a motion

      to contest their petition within thirty days of being served with Maternal

      Grandparents’ petition. Failing to file a motion to contest, DCS’s consent was

      “irrevocably implied without further court action.” (Appellants’ App. Vol. II,

      p. 19). On October 4, 2016, the trial court conducted a hearing on Maternal

      Grandparents’ petition and, at the end of the hearing, denied the petition. On

      November 30, 2016, Maternal Grandparents filed a motion to reconsider the

      trial court’s denial of their petition, which the trial court denied on December

      13, 2016. On January 17, 2017, Maternal Grandparents filed a motion

      requesting certification for interlocutory appeal of the trial court’s denial of their

      motion to reconsider. The trial court denied the certification request the

      following day.


[7]   On August 1, 2017, the trial court conducted an adoption hearing to determine

      whether DCS’s consent to adopt the Child was mandated for Maternal

      Grandparents’ adoption petition to go forward. After receiving evidence, the

      trial court concluded


              The [c]ourt having considered the evidence presented [on] this
              issue, finds that the consent of DCS is required to go forward
              with the [p]etition for [a]doption. Therefore, we will not go
              forward with the [p]etition for [a]doption that [Maternal
              Grandparents] have filed today.


      (Tr. Vol. II, pp. 41-42). On the same date, the trial court also heard evidence on

      whether the parents’ consents were required for Paternal Grandmother’s

      petition for adoption and concluded that “the consent of the parents is not

      Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018   Page 4 of 9
       required and further finds that the parents are unfit.” (Tr. Vol. II, p. 57). On

       October 18, 2017, the trial court entered its written Order denying Maternal

       Grandparents’ petition to adopt the Child.


[8]    Maternal Grandparents now appeal. Additional facts will be provided if

       necessary.


                                 DISCUSSION AND DECISION
[9]    Maternal Grandparents contend that the trial court erred in denying its petition

       for adoption of the Child. On appeal, we will not disturb the trial court’s

       decision in an adoption proceeding unless the evidence leads only to a

       conclusion opposite that reached by the trial court. In re Adoption of J.T.A., 988

       N.E.2d 1250, 1252 (Ind. Ct. App. 2013), reh’g denied, trans. denied. We will not

       reweigh the evidence. Id. Rather, we 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

       evidence. Id.


[10]   Relying on Indiana Code section 31-19-9-8(a)(10), 1 Maternal Grandparents

       assert that DCS’s consent was not required to adopt the Child and therefore,




       1
         Indiana Code section 31-19-9-8(a)(10) provides that “Consent to adoption, which may be required under
       section 1 of this chapter, is not required from any of the following: . . . (10) A legal guardian or lawful
       custodian of the person to be adopted who has failed to consent to the adoption for reasons found by the
       court not to be in the best interests of the child.”

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       pursuant to Indiana Code section 31-19-4.5-2, 2 DCS must receive notice of the

       petition to adopt. Consequently, in accordance with Indiana Code 31-19-10-

       1(b) “[a] person contesting an adoption must file a motion to contest the

       adoption with the court not later than thirty (30) days after service of notice of

       the pending adoption.” As DCS failed to file the required motion to contest,

       Maternal Grandparents maintain that DCS can now no longer object to their

       petition to adopt the Child because Indiana Code Section 31-19-9-18 specifies

       that


                (a) The consent of the person who is served with notice under
                    [I.C. §] 31-19-4.5 to adoption is irrevocably implied without
                    further court action if the person:


                     (1) Fails to file a motion to contest the adoption as required
                         under [I.C. §] 31-19-10 not later than thirty (30) days after
                         service of notice under [I.C. §] 31-19-4.5


[11]   Although a novel theory, Maternal Grandparents’ interpretation starts from the

       faulty premise that the DCS should be considered a person under the Statute.

       Under the statutory definitions applicable to Indiana Chapter 31-19, which

       comprises Indiana’s Adoption Law, the DCS is referred to as the

       “Department.” See I.C. § 31-9-2-38.5. While the DCS could arguably fit the

       definition of “Person” under I.C. § 31-9-2-89, this definition is only applicable




       2
         Indiana Code section 31-19-4.5-2 states “[] if a petition for adoption alleges that consent to adoption is not
       required under [I.C. § 31-19-9-8, notice of the adoption must be given to the person from whom consent is
       allegedly not required under [I.C. §] 31-19-9-8.”

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018                  Page 6 of 9
       to Indiana Code Chapters 31-19-19 & -25, which are not implicated in the issue

       before us. Moreover, Maternal Grandparents’ reliance on I.C. § 31-19-4.5-2 is

       misplaced as this Chapter applies to “Other Persons Entitled to Notice of

       Adoption” and more specifically to fathers who have abandoned, failed to

       support, or failed to communicate with a child and to certain grandparents. See

       I.C. § 31-19-4.5-1.


[12]   Furthermore, recent revisions to I.C. § 31-19-9-18, clarify that the ‘irrevocably

       implied’ provisions of the statute do not apply to the DCS:


               (a) This section [When implied consent to adoption irrevocable]
                   does not apply to the consent of an agency or local office that
                   is served with notice under [I.C. §] 31-19-4.5 and has lawful
                   custody of a child whose adoption is being sought.


[13]   Turning to the provisions of the adoption statute, the statute itself clearly

       expresses that when the child is a ward of DCS, “a petition to adopt [the child]

       may be granted only if written consent to adoption has been executed” by the

       “local office having lawful custody of the child whose adoption is being

       sought.” I.C. § 31-19-9-1. Accordingly, as the Child had been adjudicated a

       CHINS, she was under the custody of DCS and its consent should have been

       sought.


[14]   In In re Adoption of S.A., 918 N.E.2d 736, 742 (Ind. Ct. App. 2009), trans. denied

       (emphasis added), we noted that “[a]lthough consent is required from the agency

       having lawful custody of the child whose adoption is sought, consent is not

       required if the legal guardian or lawful custodian has failed to consent for

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018   Page 7 of 9
       reasons found by the court not to be in the best interests of the child.” See also

       I.C. § 31-19-9-8(a)(10). However, while DCS’s consent is required during the

       adoption proceedings, DCS is not granted with the unbridled discretion to

       refuse consent. As we observed in Stout v. Tippecanoe Co. Dep’t. of Pub. Welfare,

       395 N.E.2d 444, 448 (Ind. Ct. App. 1979):


               When parental rights are terminated, the [DCS], as custodian of
               the adoptive child, occupies an important role in the adoption
               process. The [DCS] becomes in loco parentis to its ward in order
               to find a suitable adoptive home, and by its expertise, aid the trial
               court in determining the child’s best interest. The ultimate
               decision as to the child’s best interest, however, rests with the
               trial court. We therefore hold the [DCS’s] power to withhold
               consent to adoption, regardless of the means by which the [DCS]
               obtained custody, is qualified by [I.C. §] 31-3-1-6(g), allowing the
               trial court to dispense with the consent of a guardian or
               custodian.


       Therefore, where the DCS refuses or withholds its consent to a proposed

       adoption, the trial court must determine whether the DCS’s denial or

       withholding is in the child’s best interests. See id. At no point, however, can

       DCS’s consent be irrevocably implied.


[15]   In the cause before us, DCS consented to Paternal Grandmother’s adoption

       petition and refused to consent to Maternal Grandparents’ petition. Upon

       review of the competing adoption petitions, the trial court concluded that

       DCS’s refusal to consent to Maternal Grandparents’ petition was in the Child’s

       best interest, and as such ruled that their adoption petition could not move

       forward. We will not disturb the trial court’s ruling.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018   Page 8 of 9
                                             CONCLUSION
[16]   Based on the foregoing, we hold that the trial court did not err in denying

       Maternal Grandparents’ petition to adopt Child.


[17]   Affirmed.


[18]   May, J. and Mathias, J. concur




       Court of Appeals of Indiana | Memorandum Decision 49A02-1711-AD-2568 | June 19, 2018   Page 9 of 9
