                                                                              FILED
                                                                       Dec 11 2019, 9:46 am

                                                                              CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Scott H. Duerring                                         Vincent M. Campiti
      Duerring Law Offices                                      Nemeth, Feeney, Masters &
      South Bend, Indiana                                       Campiti, P.C.
                                                                South Bend, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      D.T.,                                                     December 11, 2019
      Appellant-Respondent,                                     Court of Appeals Case No.
                                                                19A-AD-1334
              v.                                                Appeal from the
                                                                St. Joseph Probate Court
      J.M.,                                                     The Honorable
      Appellee-Petitioner                                       Jason Cichowicz, Judge
                                                                Trial Court Cause No.
                                                                71J01-1711-AD-111



      Vaidik, Chief Judge.



                                           Case Summary
[1]   D.T. (“Biological Father”) appeals the trial court’s order granting the adoption

      of his two children by J.M. (“Adoptive Father”). Specifically, Biological Father

      argues that the trial court failed to make any findings that would allow for his


      Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019                     Page 1 of 8
      consent to be dispensed with. We agree with Biological Father and therefore

      remand this case to the trial court.



                            Facts and Procedural History
[2]   L.M. (“Mother”) and Biological Father have two children, J.A.T.-R. (born in

      August 2008) and J.A.T. (born in December 2009). Mother and Biological

      Father got married sometime in 2009. In late 2010 or early 2011, Mother and

      Biological Father separated. In April 2011, Biological Father was arrested and

      charged with Class A felony dealing in methamphetamine. He later pled guilty

      and was sentenced to forty years in the Indiana Department of Correction. See

      20D03-1104-FA-7. Biological Father’s current release date is November 12,

      2029.


[3]   After Biological Father was arrested, Mother filed a petition to dissolve her

      marriage to him. The divorce was final in June 2011. See 20D06-1104-DR-117,

      20D06-1102-DR-64. According to the decree of dissolution of marriage,

      Mother was awarded sole legal and physical custody of the children with any

      visitation by Biological Father subject to her approval. Biological Father was

      not ordered to pay any child support while he was incarcerated. See Tr. p. 44.


[4]   When Biological Father was first incarcerated, Mother brought the children to

      visit him. But after Mother met Adoptive Father, the visits stopped. Mother

      and the children moved in with Adoptive Father in 2013, and Mother and

      Adoptive Father got married in September 2014. Nevertheless, Biological


      Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019    Page 2 of 8
      Father tried to stay in contact with the children. He sent them cards and letters

      and called Mother’s phone, but Mother did not give the cards and letters to the

      children or answer his phone calls.


[5]   In October 2017, Biological Father filed a petition for visitation with the

      children, which the trial court denied “based upon the representation that the

      child’s therapist does not recommend contact with [Biological Father].” See

      20D06-1102-DR-64.


[6]   The next month, Adoptive Father filed a petition to adopt the children. The

      petition alleged that Biological Father’s consent to the adoption is not required

      as follows:


              10. The consent of [Biological Father] is not required because
              while the children were in the custody of another person, he, for
              a period of at least one year, failed without justifiable cause to
              communicate significantly with the children when able to do so
              or knowingly failed to provide for the care and support of the
              children when able to do so as required by law or judicial decree.


              11. The consent of [Biological Father] is not required because
              [he] is presently incarcerated with the Indiana DOC following a
              methamphetamine manufacturing conviction. He is serving a
              sentence of more than twenty years. He has not had meaningful
              contact with these children for more than six years.


      Appellant’s App. Vol. II pp. 7-8. Biological Father objected to the adoption,

      and a hearing was held.




      Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019        Page 3 of 8
[7]   At the beginning of the hearing, the parties decided that they would present

      evidence on the issue of consent first. During her testimony, Mother admitted

      that Biological Father had tried to stay in contact with the children and that she

      had “interfered with his ability to communicate with the children” by not giving

      them his cards or letters or answering her phone. Tr. pp. 18-19. Mother also

      did not dispute that Father was not ordered to pay any child support while he

      was incarcerated. After hearing evidence on consent, the trial court said that it

      was taking the issue of consent under advisement and that it would have a

      ruling shortly. Id. at 46. When the court came back on the record, it ruled that

      Biological Father’s “consent is required.” Id. at 47. In making this ruling, the

      court explained, “I should tell the lawyers here that there is some recent

      caselaw that discusses the whole child support issue as well as Mother’s

      attempts to thwart communication and so that’s the reason and the basis.” Id.

      Although finding that Biological Father’s “consent is required,” the court said

      that it was moving “into the second phase of the case,” that is, “the phase of the

      actual petition” and “what is in the best interests of the children.” Id. The

      court noted that this didn’t “mean that I’ve made my decision about what’s

      going to happen next, but I wanted you to be aware of why I’m doing what I’m

      doing.” Id. After this second phase, the court issued an order granting

      Adoptive Father’s petition to adopt the children. The order provides, in

      relevant part:


              [Biological Father’s] consent to the adoption of his biological
              children by [Adoptive Father] was required.


      Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019        Page 4 of 8
                                                      ***


              The primary concern for the court in all adoption proceedings
              remains the best interests of the child. . . .


                                                      ***


              The adoption statute fails to provide guidance for which factors
              to consider when determining the best interests of a child in an
              adoption proceeding. Case law, however, has noted the strong
              similarities between the adoption statute and the termination of
              parental rights statute with regard to best interest.


              The Court must consider the totality of the circumstances in a
              termination of parental rights cause. These cases provide some
              guidance as to what constitutes an “unfit” parent. Such a parent
              cannot give a child a suitable environment at the time of the
              termination hearing.


              [Biological Father] cannot provide any type of environment for
              these children. He will not be in any position to provide such an
              environment for them until they are adults. His children require
              permanency and stability today, not ten (10) years from now.


                                                      ***


              [Adoptive Father] has proven by clear and convincing evidence
              that the adoption by him of [the children] is in their best interest.


      Appellant’s App. Vol. II p. 85 (citations omitted).


[8]   Biological Father now appeals.



      Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019           Page 5 of 8
                                  Discussion and Decision
[9]    Biological Father contends that the trial court erred in granting Adoptive

       Father’s petition to adopt the children. He argues that the court “completely

       skipped over any findings of fact, or conclusions of law that would allow for

       [his] consent to be dispense[d] with.” Appellant’s Br. p. 6. Accordingly, he

       asks us to “vacate” the court’s order granting the adoption. Id. at 10.


[10]   The granting of a petition for adoption is a multi-step process. Indiana Code

       section 31-19-11-1(a) lists the prerequisites to granting a petition, including that

       “the adoption requested is in the best interest of the child” and “proper consent,

       if consent is necessary, has been given.” Ind. Code § 31-19-11-1(a). If the

       requirements listed in the statute are met, “the court shall grant the petition for

       adoption and enter an adoption decree.” Id.


[11]   Generally, the first step in the process is determining whether the biological

       parent’s consent to the adoption is required. Indiana Code section 31-19-9-8

       addresses when consent is not required and provides, in relevant part:


               (a) Consent to adoption, which may be required under Section 1
               of this chapter, is not required from any of the following:


                                                       ***


                        (2) A parent of a child in the custody of another person if
                        for a period of at least one (1) year the parent:




       Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019          Page 6 of 8
                                (A) fails without justifiable cause to communicate
                                significantly with the child when able to do so; or


                                (B) knowingly fails to provide for the care and
                                support of the child when able to do so as required
                                by law or judicial decree.


                                                       ***


                        (11) A parent if:


                                (A) a petitioner for adoption proves by clear and
                                convincing evidence that the parent is unfit to be a
                                parent; and


                                (B) the best interests of the child sought to be
                                adopted would be served if the court dispensed with
                                the parent’s consent.


[12]   Here, the trial court specifically found that Section 31-19-9-8(a)(2) did not apply

       and that Biological Father’s consent to the adoption was required. But if that

       were true—if Biological Father’s consent was indeed required—then the

       adoption could not proceed. However, the court went on to discuss “what

       constitutes an ‘unfit’ parent” and granted the adoption. Presumably, the court

       was referencing Section 31-19-9-8(a)(11), which provides another path for

       dispensing with consent. But the court failed to make the specific findings

       required by that provision, namely, that (1) Biological Father is unfit to be a

       parent and (2) “the best interests of the child sought to be adopted would be

       served if the court dispensed with the parent’s consent.”

       Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019           Page 7 of 8
[13]   In order to dispense with Biological Father’s consent pursuant to Section 31-19-

       9-8(a)(11) and grant the adoption, the court was required to assess the best

       interests of the children at two stages: (1) a finding that Biological Father is

       unfit and that it is in the best interests of the children to dispense with Biological

       Father’s consent pursuant to Section 31-19-9-8(a)(11) and (2) a finding that

       adoption by Adoptive Father is in the children’s best interests pursuant to

       Section 31-19-11-1(a). The trial court’s order appears to have conflated the first

       best-interests inquiry with the second. We therefore remand this case with

       instructions for the trial court to determine, first, whether Biological Father is

       unfit to be a parent and, if so, whether it is in the best interests of the children to

       dispense with his consent. Only if the court makes these first two

       determinations should it move on to the best-interests analysis required under

       Section 31-19-11-1(a).


[14]   Reversed and remanded.


       Najam, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Opinion 19A-AD-1334 | December 11, 2019         Page 8 of 8
