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.,
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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
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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
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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
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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.”
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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
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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.
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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
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