Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of                                 Aug 13 2013, 7:27 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                               ATTORNEY FOR APPELLEE:

MEGAN B. QUIRK                                        DAVID J. KARNES
Public Defender                                       Dennis, Wanger & Abrell, P.C.
Muncie, Indiana                                       Muncie, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA


IN RE THE ADOPTION OF S.H.,                    )
L.H., AND J.H.                                 )
                                               )
BENJAMIN HANKINS                               )
          Appellant,                           )
                                               )
               vs.                             )     No.    18A02-1212-AD-01020
                                               )
                                               )
G. NICK PETERSON                               )
ANDREA PETERSON                                )
            Appellees.                         )



                     APPEAL FROM THE DELAWARE CIRCUIT COURT
                         The Honorable Mary G. Willis, Special Judge
                              Cause No. 18C01-1205-AD-0018


                                          August 13, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
        Benjamin Hankins (“Hankins”), appeals the determination of the Delaware Circuit

Court that his consent was not required in adoption proceedings regarding his three

children, S.H., L.H. and J.H. The court made its determination pursuant to Indiana Code

section 31-19-9-9 after an evidentiary hearing and based upon Hankins’s conviction for

the murder of his wife, the mother of the children. Hankins argues that there was not

clear and convincing evidence to support the effective termination of his parental rights.

We disagree and affirm.

                                   Facts and Procedural History

        On June 3, 2011, Hankins shot his wife, the mother of S.H., L.H., and J.H.

(“Mother”), multiple times inside his home, while J.H., then four years old, was waiting

outside the home in her mother’s vehicle. Mother was later pronounced dead at IU

Health Ball Memorial Hospital.

        On April 11, 2012, Hankins was convicted of murder by a jury. He was sentenced

to sixty-four years executed in the Indiana Department of Correction on June 21, 2012,

and received credit time for 385 days spent in jail since June 3, 2011. At best, Hankins

can expect to serve thirty-two years of his sentence, which would mean he would be

released sometime in 2041.1 On April 3, 2013, this court affirmed Hankins’s conviction

for murder of the mother of his children. Hankins v. State, No. 18A02-1207-CR-611 (Ind.

Ct. App. Apr. 3, 2013). Hankins then filed a petition to transfer to the Indiana Supreme

Court. Our supreme court denied transfer on June 27, 2013.

1
  According to the DOC website, his earliest possible release date is in 2043. However, we use 2041 as
the earliest possible release date as calculated based on the sentence and incarceration date provided in the
record.

                                                     2
       After the murder, Gary and Andrea Peterson (“the Petersons”), the children’s

maternal grandparents, immediately filed for and received temporary guardianship over

the children on June 17, 2011. Since that time, the children have resided with the

Petersons, and have been doing well emotionally and academically. The Petersons have

provided consistency during this difficult time, and have adjusted their lives in order to

best care for the children. Mrs. Peterson left her job to care for the children full time, and

the children have been enrolled in a nearby Christian school where they are on the A-B

honor roll. Even though the children struggle emotionally at times, and understandably

so, the Petersons have helped to focus their grieving process on positive thoughts and

memories.    The Petersons, despite losing their own daughter in the tragedy, avoid

speaking ill of Hankins, and allow the children to visit with their paternal grandmother

pursuant to a mediated visitation arrangement.

       On May 25, 2012, the Petersons filed a petition for adoption requesting that they

be allowed to adopt S.H., L.H., and J.H. Hankins filed a motion to contest the adoption

proceedings on June 22, 2012. After Hankins was appointed an out-of-county public

defender, the trial court set the matter for a contested hearing on October 9, 2012. On

October 2, Hankins filed a motion to continue based on the pendency of his direct

criminal appeal, which the trial court denied. Hankins then requested a change of venue,

the original Delaware Circuit Judge set to hear the case recused herself, and Special

Judge Mary G. Willis of the Henry Circuit Court accepted jurisdiction in the case. A

contested hearing took place on November 21, 2012 in Henry Circuit Court.



                                              3
       At the hearing, Hankins admitted the fact of his conviction and incarceration for

his crime, but testified that his right to consent to the adoption should not be terminated

because his appeal was pending, and he anticipated that the verdict would be overturned.

He also argued that termination of his rights was not in the children’s best interest.

Hankins requested that the court continue the children in the guardianship of the

Petersons, so that he might regain custody in such event that his conviction was

overturned. The only argument Hankins presented through testimony regarding the best

interests of the children was that being separated permanently from him, having already

lost one parent, would be traumatic for the children.

       The Petersons presented evidence from Dr. Thomas Murray (“Dr. Murray”), a

practicing clinical psychologist who had met with the children on three separate

occasions in order to make a recommendation as to their best interests in the upcoming

adoption proceedings.     Dr. Murray’s professional opinion was based on his meetings

with the children and with the children’s social worker. Dr. Murray opined that the

children’s best interests would be served by the Petersons’ adoption and termination of

the father’s right to consent to the adoption. Dr. Murray also testified concerning the

children’s anger and resentment toward Hankins following Mother’s murder, and

indicated that the children felt favorably toward the Petersons.

       Following testimony by both parties and Dr. Murray, the trial court dispensed with

Hankins’s consent and issued its decree of adoption on November 21, 2012 for S.H., L.H.

and J.H., naming the Petersons as adoptive parents. Hankins now appeals.



                                             4
                                Discussion and Decision

       Indiana Code section 31-19-9-9 provides:

       A court shall determine that consent to adoption is not required from a
       parent if the:

       (1) parent is convicted and incarcerated at the time of the filing of a
           petition for adoption for:
           (A) murder (IC 35-42-1-1); . . .
       (2) victim of the crime is the child’s other parent; and
       (3) court determines, after notice to the convicted parent and a hearing, that
           dispensing with the parent’s consent to adoption is in the child’s best
           interest.

(emphasis added). It is undisputed that both the first and second elements of this statute

were satisfied at trial. Thus, the only element for the court to determine was whether

dispensing with Hankins’ consent to the adoption was in the children’s best interest.

       In reviewing a trial court’s ruling in an adoption proceeding, this court will not

disturb that ruling unless the evidence leads to but one conclusion, and the trial court

reached the opposite conclusion. In re Adoption of K.S., 980 N.E.2d 385, 387 (Ind. Ct.

App. 2012) (citing In re Adoption of M.A.S., 815 N.E.2d 216, 218 (Ind Ct. App. 2004)).

We do not reweigh evidence, and we only consider evidence that is favorable to the trial

court’s decision together with reasonable inferences that can be drawn therefrom to

determine whether the evidence is sufficient to sustain the trial court’s ruling. Id. It is

the appellant’s burden to overcome the presumption that the trial court’s ruling is correct.

Id.

       Hankins’s primary contention on appeal in this matter is that the trial court should

not have dispensed with his consent while the direct appeal of his convction was pending.


                                             5
Although his criminal appeal has now been denied, and he remains both convicted and

incarcerated, we review his new appeal as a challenge to the sufficiency of the evidence

that adoption is in the best interest of the children. Hankins contends that the adoption

proceedings ought to be halted until all appeals are exhausted, which plainly contradicts

Indiana law. However, the law is clear that “the court may hear and grant a petition for

adoption even if an appeal of a decision regarding the termination of the parent-child

relationship is pending.” Ind. Code § 32-19-11-6.

       Hankins’s additional argument, that the trial court should preserve his parental

rights despite his incarceration for the murder of his children’s mother defies belief.

“[E]arly, permanent placement of children with adopted families furthers the interests of

both the child and state.” In re Adoption of J.B.S., 843 N.E.2d 975, 977 (Ind. Ct. App.

2006). In cases like Hankins’s, early, permanent placement is particularly important.

Hankins faces a sixty-four year sentence, and to stay adoption proceedings until “all

appeals,” are exhausted, a concept that would include post-conviction relief and habeas

corpus proceedings, would place the children in custodial limbo for years, and perhaps

into their adult lives.

       “Because the ultimate purpose of the law is to protect the child, the parent-child

relationship will give way when it is no longer in the child’s interest to maintain this

relationship.” A.F. v. Marion Cnty. Office of Family and Children, 762 N.E.2d 1244,

1249 (Ind. Ct. App. 2002). Dr. Murray’s testimony indicated that adoption was in the

best interest of the children. Hankins presented no substantive evidence as to the best

interests of the children, but rather argued only that if his conviction were reversed, and

                                            6
the adoption took place without his consent, he would have no recourse by which to re-

establish a relationship with his children. Hankins’s testimony that his separation from

his children would be particularly traumatic to them because they had already suffered

the loss of their mother is both selfish and incredible, and it fails to take into account the

fact that Hankins is responsible for the children’s loss of their mother, and that his

separation from the children is due to his incarceration for the Mother’s murder.

       For all of these reasons, the trial court’s determination that Hankins’s consent to

the adoption of his children is unnecessary is supported by clear and convincing evidence,

and adoption by the children’s maternal grandparents is in their best interest.

       Affirmed.

NAJAM, J., and BROWN, J., concur.




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