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In re Adoption of J.L.J.

Court of Appeals of Indiana

February 18, 2014

IN THE MATTER OF THE ADOPTION OF J.L.J. and J.D.J., Minor Children, J.J., Appellant-Respondent, And T.H., Appellant-Intervenor,
v.
D.E., Appellee-Petitioner

APPEAL FROM THE MONROE CIRCUIT COURT. The Honorable Stephen R. Galvin, Judge. Cause No. 53C07-1109-AD-77; 53C07-1109-AD-78; 53C07-1109-GU-126; & 53C07-1109-GU-127.

ATTORNEYS FOR APPELLANTS: THERESA M. WILLARD, JOSH S. TATUM, Plews Shadley Racher & Braun, LLP, Indianapolis, Indiana, KARA REAGAN, Stafford Law Office, LLC, Bloomington, Indiana.

ATTORNEYS FOR APPELLEE: DONALD W. FRANCIS, JR., FRANCIS BERRY DOMER, Bloomington, Indiana.

RILEY, Judge. VAIDIK, C. J. and MAY, J. concur.

OPINION

Page 1190

RILEY, Judge.

STATEMENT OF THE CASE

In this consolidated appeal, Appellant-Respondent, J.J. (Father), and Appellant-Intervenor, T.H. (Grandmother), appeal the trial court's Order dispensing with Father's consent to the adoption of his two minor children and denying Grandmother's petitions for guardianship and adoption of her grandchildren in favor of Appellee-Petitioner, D.E. (Guardian).

We affirm.

ISSUES

Father raises two issues on appeal, one of which we find dispositive and restate as the following: Whether the trial court erred in finding that Father's consent to Guardian's adoption of the Twins was not required based on Father's failure to provide support. Grandmother raises three additional issues, which we restate as the following:

(1) Whether the trial court erred in concluding that Grandmother was not entitled to receive notice that Guardian had filed petitions for guardianship;

Page 1191

(2) Whether the trial court erred in failing to comply with the Interstate Compact on the Placement of Children (ICPC); and
(3) Whether the trial court abused its discretion in denying Grandmother's petitions for appointment as the Twins' guardian and for their adoption.

FACTS AND PROCEDURAL HISTORY

On Thanksgiving Day of 2008, Grandmother was introduced to J.S. (Mother)[1] while at the home of a mutual friend. Grandmother wanted to help Mother, who was then seventeen years old and had a young child. Shortly thereafter, seventeen-year-old Father met J.S. at Grandmother's home in Benton Harbor, Michigan. Since that time, they have been involved in an on-again, off-again relationship. Their relationship has produced four children, including the twins at the center of this appeal, J.L.J. and J.D.J. (Twins).[2] Father also has two other children from a different relationship.

In June of 2010, Mother resided in South Bend, Indiana. She was visiting Father in Benton Harbor on June 7, 2010 when she prematurely went into labor. Shortly after birth, the Twins were transferred from Benton Harbor to a better-equipped hospital in South Bend, where they remained for approximately one month. On July 12, 2010, Mother took the Twins home from the hospital, but with four children under two years of age, she had " little interest in caring for the [Twins]." (Appellants' App. p. 75). A few weeks later, Mother left the Twins with her cousin, J.B. (Cousin), who also lives in South Bend.

Throughout Mother's pregnancy and during the first year-and-a-half of the Twins' lives, Father was incarcerated at various intervals and for different reasons, including a four-month stint for battering Mother. At some point in the fall of 2010, Father and Mother removed the Twins from Cousin's care and lived together in South Bend to " try parenting together." (Grandmother's Br. p. 5). However, they soon separated. Father and Mother's on-again, off-again periods were short and frequent, and following each break-up, Mother would leave the Twins with a relative or family friend. Between the end of 2010 and September of 2011, a number of different people cared for the Twins for varying lengths of time. In addition to sporadic stays with Mother, the Twins were shuffled among Cousin, Grandmother, the Twins' maternal grandmother (D.S.), and Mother's former foster mother (L.B.).[3] Father spent time with the Twins when they were with Mother or Grandmother, but he otherwise did not play a significant role in their care and custody.

On June 28, 2011, Father returned to jail. While serving time in the Berrien County Jail (Michigan), on July 6, 2011, the St. Joseph County (Indiana) probate court issued an order establishing Father's paternity as to the Twins. The probate

Page 1192

court found that " Indiana is the home state of the [Twins,]" and that " Father resides in St. Joseph County, Indiana or has sufficient ties to Indiana." (Guardian's Exh. 1). The probate court awarded sole custody to Mother and ordered that the Twins' surnames be changed to that of Mother rather than Father. Mother was given the discretion to allow parenting time for Father in accordance with the Twins' best interests. Finally, the probate court ordered Father to pay $26.00 per week in child support and $4.00 per week in arrearages.

The Twins spent a significant portion of the summer of 2011 with Grandmother in Benton Harbor, and Mother took them back and forth on several occasions for appointments and other visits. However, after hearing a rumor that Father would be incarcerated for five years, Mother began seeking someone to take the Twins on a permanent basis. In August of 2011, Mother picked the Twins up from Grandmother's home, explaining that she was taking them to South Bend to see family and that she would return them in one week. Mother never returned the Twins to Grandmother. Instead, Mother placed them with her former foster mother, L.B., and demanded that Grandmother mail her their birth certificates and social security cards.

On September 11, 2011, D.S., the maternal grandmother, was having dinner with her sister-in-law and her sister-in-law's friend, Guardian. Upon learning that Guardian had been attempting to adopt children for several years, D.S. informed Guardian about Mother and the Twins. Guardian made contact with Mother, and on September 17, 2011, Guardian drove from her home in Bloomington, Indiana to Mother's home in South Bend. Along with Mother and her other children, D.S. and Cousin were also present when Guardian arrived. Mother informed Guardian that Father was incarcerated and had only ever had limited contact with the Twins. Although this was the first time Guardian and Mother had ever met, they discussed Guardian's adoption of the Twins, and Mother signed a consent form for Guardian to be named the Twins' guardian. That day, Guardian took the Twins home with her to Bloomington, where they have since resided.

On September 29, 2011, Guardian filed petitions with the trial court for appointment as the Twins' guardian and also filed petitions to adopt the Twins.[4] On October 3, 2011, notice of the guardianship hearing was issued to Father. On October 6, 2011, Father received two summons notifying him that Guardian had filed adoption petitions, which explained that Father had thirty days to file a motion to contest the adoption, or his consent would " be irrevocably implied and you will lose your right to challenge either the adoption or the validity of the implied consent to the adoption. You will lose your right to establish paternity of the child." (Guardian's Exh. I, p. 225). On November 15, 2011, the trial court conducted a hearing and appointed Guardian as permanent guardian over the Twins pending finalization of an adoption. Neither Mother nor Father were present during the hearing. On December 16, 2011, approximately one week after his release from jail, Father wrote a letter to the trial court, requesting that the Twins be placed with Grandmother and that he be granted a six-month extension to contest the adoption. On February 16, 2012, Father filed his official motion to contest Guardian's adoption of the Twins.

Page 1193

On March 15, 2012, Grandmother, acting pro se, filed a motion to intervene in the adoption cases and simultaneously filed cross-petitions to adopt the Twins. On March 27, 2012, the trial court conducted a hearing, during which it granted Grandmother's motion to intervene and advised her to retain counsel. On May 1, 2012, Grandmother also filed a motion to intervene in the guardianship proceedings, and Mother filed her consent to Grandmother's adoption of the Twins. On June 6, 2012, Grandmother filed motions to remove Guardian as the Twins' guardian and for her own appointment in lieu thereof. Grandmother insisted that she " is the most suitable person to serve as guardian for the minors . . . because she was their primary caregiver for eight or nine months of their lives, she is ...


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