MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                            Aug 02 2018, 8:39 am
court except for the purpose of establishing
                                                                         CLERK
the defense of res judicata, collateral                              Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT
Kyle D. Gobel
Crawfordsville, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

IN RE: THE ADOPTION OF                                   August 2, 2018
S.M.S.                                                   Court of Appeals Case No.
                                                         18A-AD-517
                                                         Appeal from the Clinton Circuit
F.V.,                                                    Court
Appellant-Respondent,                                    The Honorable Bradley K. Mohler,
                                                         Judge
        v.
                                                         Trial Court Cause No.
                                                         12C01-1708-AD-11
J.S. and A.S.,
Appellees-Petitioners.



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-AD-517 | August 2, 2018                Page 1 of 10
                                             Case Summary
[1]   F.V. (Father) appeals the trial court’s grant of an amended petition to adopt the

      minor child S.M.S. (Child) filed by J.S. and A.S. (Grandfather and

      Grandmother, respectively – collectively, the Grandparents). Father presents

      three issues for our review, which we consolidate and restate as follows:


              1. Whether the trial court erred in concluding that Father
              impliedly consented to the adoption; and


              2. Whether the trial court’s finding that adoption was in the best
              interests of Child was clearly erroneous.


[2]   We affirm.


                                   Facts & Procedural History
[3]   M.S. (Mother) and Father began a romantic relationship in November 2015,

      and conceived Child. Father became incarcerated in the Hendricks County Jail

      from March to August 2016, and, thereafter, was transferred to the Indiana

      Department of Correction (DOC). Child was born on October 4, 2016, while

      Father was incarcerated. Father’s earliest possible release date is May 2019.

      Father has never met Child.


[4]   On January 26, 2017, Mother and Child moved into the Grandparents’ home.

      Mother moved out in February 2017, leaving Child with the Grandparents.


[5]   The Grandparents filed a petition for the adoption of Child on August 14, 2017,

      and, therewith, Mother’s consent to the proposed adoption. The adoption

      Court of Appeals of Indiana | Memorandum Decision 18A-AD-517 | August 2, 2018   Page 2 of 10
      petition alleged that paternity had not been established for Child by court

      proceeding or by a paternity affidavit. The Grandparents attached to the

      petition “[a]n Indiana State Department of Health Putative Father Registry

      Affidavit, which state[d] that no putative father is registered and no paternity

      determination is on file [for Child].” Appellant’s Appendix Vol. 2 at 6-7. Father

      was notified that the petition for adoption had been filed.


[6]   On September 1, 2017, Father filed a pro se motion contesting the adoption,

      alleging that he was Child’s biological father and that he did not consent to the
                     1
      adoption. On October 16, 2017, the Grandparents filed an amended adoption

      petition, alleging (among other things) that, since Child’s birth, Father had not

      paid support; due to lack of communication and support, Father had

      abandoned Child for longer than six months; Father was “unfit” to parent

      Child; and Father’s consent to the adoption was not required. Id. at 24. On

      December 18, 2017, the Grandparents filed a motion for summary judgment,

      arguing that because Father failed to file a paternity action and register with the

      Putative Father Registry within the required time, his consent to the adoption

      was not required. The Grandparents asked that summary judgment be granted

      on that issue.


[7]   On February 2, 2018, the trial court held a hearing on the adoption petition and

      the motion for summary judgment. Both Father and the Grandparents




      1
          On October 26, 2017, the trial court appointed counsel to represent Father.


      Court of Appeals of Indiana | Memorandum Decision 18A-AD-517 | August 2, 2018     Page 3 of 10
      attended the hearing, following which the trial court issued an order finding

      that Father’s consent to the adoption was irrevocably implied because Father

      had failed to register with the Putative Father Registry and had failed to file a
                               2
      paternity action. Id. at 80. The court concluded that adoption was in Child’s
                                                                                                                  3
      best interests and granted the Grandparents’ amended petition for adoption.
                                    4
      Father now appeals. Additional facts will be provided as necessary.


                                           Discussion & Decision
[8]   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. Rust v. Lawson, 714 N.E.2d 769, 771

      (Ind. Ct. App. 1999), trans. denied. We will not reweigh the evidence but

      instead 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 decision. Id. The decision of the trial

      court is presumed to be correct, and it is the appellant’s burden to overcome

      that presumption. Id. at 772.




      2
       The court also found “[t]hat for argument’s sake, assuming [Father] had complied by registering with the
      Putative Father Registry and/or had filed a paternity action, his consent is still not required due to his lack of
      contact with the child and/or his lack of support for the child” per Ind. Code § 31-19-9-8(2).
      3
          The trial court did not issue a ruling on the Grandparents’ motion for summary judgment.
      4
          The Grandparents have not filed an appellees’ brief with our court.


      Court of Appeals of Indiana | Memorandum Decision 18A-AD-517 | August 2, 2018                        Page 4 of 10
[9]    When, as in this case, the trial court has made findings of fact and conclusions

       thereon, we apply a two-tiered standard of review: “we must first determine

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

       support the judgment.” In re Adoption of T.L., 4 N.E.3d 658, 662 (Ind. 2014).

       Factual 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. (internal quotation omitted).


                                          1. Father’s Consent
[10]   Father first argues that the trial court erred by finding that his consent to the

       adoption was irrevocably implied because he failed to timely register as a

       putative father with the Indiana Putative Father Registry. I.C. § 31-19-5-18

       governs the waiver of notice rights of unregistered putative fathers. The statute

       provides as follows: “A putative father who fails to register within the period

       specified by section 12 of this chapter waives notice of an adoption proceeding.

       The putative father’s waiver under this section constitutes an irrevocably

       implied consent to the child’s adoption.” I.C. § 31-19-5-18. I.C. § 31-19-5-12(a)

       sets forth the time period in which a putative father must register, that is, for our

       purposes, within thirty days of the child’s birth or by the date on which the

       petition to adopt the child is filed, whichever is later.

       “[A] putative father whose consent has been implied may not challenge

       the adoption or establish paternity.” In re Adoption of J.D.C., 751 N.E.2d 747,

       750 (Ind. Ct. App. 2001); I.C. §§ 31-19-9-13, –14.

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-517 | August 2, 2018   Page 5 of 10
[11]   Father concedes that he did not meet either of the deadlines set forth in I.C. §

       31-19-5-12(a). However, Father implores us to consider favorably his efforts to

       contest the adoption. In support of his argument, Father points us to our

       opinion in In re Adoption and Paternity of K.A.W., 99 N.E.3d 724 (Ind. Ct. App.

       2018), where, according to Father, this court “[took] issue with [I.C. §§ 31-19-5-

       18 and 31-19-5-12(a)].” Appellant’s Brief at 15. In K.A.W., putative father filed a

       paternity action. Thereafter, the adoptive parents filed a petition to adopt the

       child. Putative father timely filed a motion to contest the adoption but failed to

       timely register as the putative father. The trial court found that putative father’s

       failure to register “‘constitute[d] an irrevocably implied consent’ to the

       adoption.” K.A.W., 99 N.E.3d at 725. In affirming the trial court’s decision,

       this court explained:


               Putative Father makes a compelling argument that the purpose of
               the Putative Father Registry is to ensure that putative fathers
               have notice if someone is seeking to adopt their child(ren). I.C. §
               31-19-5-3. In this case, Putative Father not only had notice, he
               was an active participant; first, he took the initiative to file a pro
               se paternity action and then, he actively took part in the adoption
               proceedings. Here, therefore, there was no true reason that he
               had to register. Indeed, it feels as though this outcome is not
               only nonsensical, but unjust; it feels as though his action of filing
               the paternity cause should have been enough to preserve his right
               to object; it feels as though this is the ultimate “gotcha” outcome.
               In a perfect world, we would reverse. But this world is not
               perfect, and the statute says what it says, which is that the failure
               to register in a timely fashion leads to irrevocably implied




       Court of Appeals of Indiana | Memorandum Decision 18A-AD-517 | August 2, 2018   Page 6 of 10
                           [5]
                consent. We are compelled to affirm the trial court given the
                plain language of the statute at issue.


       Id. at 727.


[12]   Here, Father failed to timely register with the Indiana Putative Father Registry.

       We, like the court in K.A.W., are compelled to affirm the trial court given the

       plain language of I.C. § 31-19-5-12(a). See also I.C. §§ 31-19-9-13, –14

       (a putative father whose consent to adoption is implied is not entitled to

       challenge either the validity of his implied consent or establish paternity). As

       such, the trial court did not err by finding that Father’s consent to the adoption

       was irrevocably implied.


                                        2. Best Interests of Child
[13]   Father also challenges the trial court’s determination that adoption was in

       Child’s best interests. 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). Even if a court determines that a natural parent’s consent is not

       required for an adoption, the court must still determine whether adoption is in

       the child’s best interests. See I.C. § 31-19-11-1(a)(1). “When reviewing the trial

       court’s ruling in an adoption proceeding, we will not disturb that ruling unless




       5
         We noted the following in footnote 3 in K.A.W.: “Therefore, the takeaway for practitioners (though we
       acknowledge that Putative Father instituted his paternity action pro se) is that the best course of action under
       circumstances similar to these would be to register with the Putative Father Registry contemporaneously with
       – or even before – the filing of a paternity action.” K.A.W.., 99 N.E.3d at 727 n.3.

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-517 | August 2, 2018                      Page 7 of 10
       the evidence leads to but one conclusion and the trial judge reached an opposite

       conclusion.” T.L., 4 N.E.3d at 662.


[14]   We note that the adoption statute does not provide guidance for which factors

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

       proceeding, but we have noted that there are strong similarities between the

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

       See M.L., 973 N.E.2d at 1223 (holding that the adoption statutes and the

       termination statutes provide similar balances between parental rights and the

       best interests of the children). In termination cases, we have held that the trial

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

       interests of a child. In re I.A., 903 N.E.2d 146, 155 (Ind. Ct. App. 2009).


[15]   In support of his argument that adoption by the Grandparents was not in

       Child’s best interests, Father points us to his testimony at the adoption hearing,

       specifically that, according to Father, he showed “his efforts to communicate

       with and support the Child were commensurate with his resources and
                                                     6
       opportunities while in the DOC”; he “contested the proposed adoption and

       actively participated in the adoption proceedings”; and he “loved [Child] and . .

       . his goal was to have [Child] in his care.” Appellant’s Brief at 20. Father asks us

       to also consider his testimony that he “was working on time cuts [to his




       6
         According to Father, he had “no assets or income with which to provide support for [Child]”; he had
       “limited assets to use to send letters and make phone calls”; however, he had “used his limited resources to
       send four letters to the Grandparents’ home.” Appellant’s Brief at 20.

       Court of Appeals of Indiana | Memorandum Decision 18A-AD-517 | August 2, 2018                     Page 8 of 10
       sentence in the DOC], and that he hoped to be released . . . close to [Child’s]

       second birthday,” as well as testimony that he was “taking DOC substance

       abuse classes and that he intended to continue working on his sobriety upon his

       release.” Id. at 19.


[16]   Here, however, we find that our resolution of Father’s implied consent issue

       disposes of Father’s best interests challenge. As we stated above, a putative

       father whose consent has been implied may not challenge the adoption. J.D.C.,

       751 N.E.2d at 750; I.C. § 31-19-9-13. Thus, under the circumstances of this

       case, Father simply has no standing to raise the best interests argument.


[17]   Even assuming that Father can raise the best interests argument, a review of the

       record supports the trial court’s determination that the Grandparents’ adoption

       of Child was in Child’s best interests. Father currently is incarcerated with an

       earliest possible release date of May 20, 2019. Father was incarcerated prior to

       Child’s birth, and Child has never met Father. Father has no assets. His only

       source of income is the small amount of money his father deposits monthly into

       his prison commissary account. Child has lived with the Grandparents since

       she was approximately three months old, and the Grandparents have provided

       all the support for Child. Father has had almost no contact with Child. At the

       adoption hearing, Grandmother testified that Child has bonded with her and

       Grandfather, and that she and Grandfather are able to provide for Child

       financially. Grandfather testified that he was mentally, physically, and

       financially able to care for Child.



       Court of Appeals of Indiana | Memorandum Decision 18A-AD-517 | August 2, 2018   Page 9 of 10
[18]   Based upon the totality of the evidence presented during the adoption hearing,

       we cannot say that the evidence leads only to the opposite conclusion of that

       reached by the trial court. We therefore find that the trial court’s conclusion

       that the adoption of Child by the Grandparents was in Child’s best interests was

       not clearly erroneous.


[19]   Judgment affirmed.


       Bailey, J. and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-AD-517 | August 2, 2018   Page 10 of 10
