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In re Adoption of M.H.

Court of Appeals of Indiana

August 19, 2014

N.B. & R.B., Appellees

Page 613

[Copyrighted Material Omitted]

Page 614

APPEAL FROM THE VANDERBURGH SUPERIOR COURT. The Honorable Brett Niemeier, Judge. Cause No. 82D07-1205-AD-00068.


ATTORNEY FOR APPELLEES: MATTHEW W. LUTZ, Fox & Lutz, LLC, Evansville, Indiana.

BROWN, Judge. VAIDIK, C.J., and NAJAM, J., concur.


Page 615

BROWN, Judge

W.M. and S.K. (collectively, the " Appellants" ) appeal the trial court's order denying their petition for adoption of M.H. and granting the petition for adoption filed by R.B. and N.B. The Appellants raise two issues which we revise and restate as:

I. Whether the trial court erred by denying the Appellants' Motion to Recuse after receiving an ex parte communication from the judge's fraternity brother urging the judge to rule in a particular manner on the day of the adoption trial; and
II. Whether the trial court erred in finding that it was in the best interest of M.H. to be adopted by the Appellees.

We affirm.


M.H. was born on April 9, 2012, to H.H. (" Mother" ), with an unknown father. Mother tested positive for cocaine, opiates, and THC at the time of M.H.'s birth, and M.H. tested positive for cocaine and THC. On April 12, 2012, a CHINS petition was filed on M.H. and the baby was placed in a foster home.

The Appellees are licensed foster parents who reside in Evansville, Indiana. N.B. operates an in-home licensed daycare, with an average of four to six children present each day. R.B. is a retired law enforcement officer who was employed at Markham Security in May 2012 and at Volunteers of America in May 2013. The Appellees both have college educations. N.B. was born in December 1962, and R.B. was born in February 1961. The Appellees were married on October 10, 2007. R.B. has no biological children of his own. N.B. has three biological children of her own living in the marital residence. In addition, the Appellees have adopted five children. Three of these children are biological half-siblings to M.H. and one is biologically a maternal cousin to M.H. In addition to their biological children, adopted children, other foster children living in the residence, and day care children, over the course of the last five years the Appellees have had approximately twenty-five different foster children living in their home.

Appellant W.M. was born in December 1950 and is the maternal great aunt of Mother. W.M. is unmarried and resides

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alone in Boonville, Indiana, in a four bedroom house. Appellant S.K. is the adult daughter of W.M., is unmarried, and resides in Evansville, Indiana, with her two children, ages ten and eleven.

On May 4, 2012, the Appellees filed a Motion for Placement. On May 9, 2012, W.M. requested placement of M.H. On May 10, 2012, the Appellees filed their Petition for Adoption, and on June 1, 2012, W.M. filed a Petition for Adoption with the consent of the biological mother. On June 1, 2012, the trial court held a CHINS hearing in a separate cause and ordered split custody placement of M.H. between the Appellees and W.M. On August 30, 2012, the Appellants filed an amended joint petition to adopt, and their case was consolidated with the Appellees' case by the trial court. On January 16, 2013, the Vanderburgh Superior Court terminated the biological mother's parental rights.

At some point, DCS recommended the Appellants as the adoptive family.[1] The court heard evidence concerning the petitions to adopt on May 30, 2013, August 13, 2013, and August 20, 2013. During the presentation of evidence on May 30, 2013, upon returning from lunch, Judge Brett Niemeier advised the parties tat he had received an email from his fraternity brother, Mark Schultz. The email message was dated May 30, 2013 at 8:03 a.m. and stated:

Hi Brett, I wanted to drop you a quick e-mail on a hearing you have today for a child adoption situation. My daughter -- Brittany Deer sent you an e-mail last week [o]n behalf of [N.B.]. I think the world of [N.B.] and [R.B.] we have been friends for 10 years and she was the babysitter for both of my step children.
You could not find a couple that cares for children like [N.B.] and [R.B.]. On their behalf I am sending you my support for them.
Take care Brett and hope to see you at the Picnic.
Respectfully, Mark.

Appellants' Appendix at 31.

Judge Niemeier represented that he did not read all of the email but that he read enough to know that it supported the Appellees on their adoption petition. The Judge indicated that he was told by counsel that Schultz's daughter had also emailed the Judge a week prior about the adoption matter. Judge Niemeier noted that he and Schultz " were fraternity members for about a year and a half in the 80s," that he could not think of the last time he saw Schultz, and that [o]ur fraternity has an annual picnic, so I see him . . . I don't know if I saw him last year or if it was two years ago . . . ." Transcript at 67. The Judge gave the Appellants an opportunity to discuss with their

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counsel whether they wanted to make a motion to remove him. The Judge advised the Appellees' attorney that they can make a motion too if they wanted but that he did not think the issue pertained to them because the email favored the Appellees.

After discussing with counsel, the Appellants concluded that if they " received a decision that they could not live with in this case, they would always wonder if it was because . . . there was pressure by friends or acquaintances to rule one way or the other. And they would also wonder whether or not that had an impact." Id. at 68-69. The Appellants then moved to have a neutral judge appointed to hear the case. The court denied the Appellants' motion.

In June 2013, one of the Appellees' children was believed to have cancer, requiring that their full attention and finances be directed towards that child. During this time the Appellees did not see M.H. and were unsure whether they would be able to continue to pursue the adoption due to the circumstances. The Appellees gave a letter to the Appellants instructing them not to return M.H. to their residence any longer and that they had made a decision that it was in the best interests of their family to not follow through with the adoption. The Appellees indicated in the letter that they desired to work out an agreement to have visitation with M.H. at some point in the future, and they asserted that M.H. would resent the Appellants for removing her from the household of her siblings and would eventually come join their family when she was an adult. The Appellees also had each of the children write letters to M.H. and W.M. and later gave them to W.M. The letters were handwritten in crayon and contained statements such as " shame on you," " you better be happy you made kids and adults cry and cry! I dispise [sic] you!," and " [s]he deserves the world since you are taking her from her siblings." Appellants' Exhibits 10-A through 10-G.

The Appellants had M.H. exclusively after June 24, 2013. On July 22, 2013, the Appellees filed a Motion to Resume Court Ordered Placement Schedule, referring to the parenting time schedule that was reached in the CHINS case. In the CHINS proceeding, at one of the progress hearings, the Appellees appeared and requested the Court to reinstate the prior visitation schedule. The court was advised of the Appellees' letter and that in accordance with their letter, no parenting time had taken place since June 24, 2013. The court denied the Appellees' request to re-implement the prior schedule.

The adoption proceedings continued on August 13, 2013, and August 20, 2013. On October 13, 2013, the court issued its order (the " Order" ) granting the adoption to the Appellees, and ordering the Appellants to part with M.H., which was later extended to October 15, 2013, at the request of DCS. In addition to reciting findings consistent with the above, the Order states as follows:

FAMILY TIES: . . . . There was great emphasis, especially from the DCS, that [the Appellants'] family relationship was the leading factor for them to believe it was in [M.H.]'s best interest to be adopted by [them]. The Court is unconvinced that the factor of being distantly related should be given significant weight. Clearly under DCS policy and some state law relatives are given preference when looking at placement or possible adoption of a child, but there is a limit to this factor. This case is an example of why there are limits to this factor. . . . The ...

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