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In re Adoption of C. J.

Court of Appeals of Indiana

March 16, 2017

In the Matter of the Adoption of C. J., A Minor,
v.
M. J., Appellee-Petitioner, S. R., Appellant-Respondent,

         Appeal from the Johnson Superior Court The Honorable Kevin Barton, Judge Trial Court Cause No. 41D01-1408-AD-30

          ATTORNEYS FOR APPELLANT Ryan P. Dillon Marita K. Webb Dillon Legal Group, P.C. Franklin, Indiana.

          RILEY, JUDGE.

         STATEMENT OF THE CASE

         [¶1] Appellant-Respondent, S.R. (Mother), appeals the trial court's decree of adoption of her biological child, C.J. (Child), by Appellee-Petitioner, M.J. (Stepmother).

         [¶2] We reverse and remand.

         ISSUE

         [¶3] Mother raises four issues on appeal, one of which we find dispositive and which we restate as follows: Whether Mother knowingly and voluntarily waived her right to counsel at the adoption hearing, where the trial court failed to impress upon her the serious consequences she faced if she represented herself.

         FACTS AND PROCEDURAL HISTORY

         [¶4] Mother and E.J. (Father) are the biological parents of the Child, born on September 8, 2009, in Franklin, Johnson County, Indiana. On September 10, 2009, Father executed a paternity affidavit for the Child. At some point thereafter, a paternity action was commenced in the Johnson Circuit Court under Cause Number 41C01-1106-JP-00145 (the paternity court). On January 11, 2012, the paternity court issued an order on custody, support, and parenting time. The paternity court awarded legal and physical custody of the Child to Father and ordered Mother to pay $25.00 per week in child support. Mother, who was suffering from a substance abuse addiction, was to receive supervised parenting time as agreed upon by the parties. Mother was also ordered to complete a ten-panel hair follicle drug test in order to increase her parenting time in accordance with the Indiana Parenting Time Guidelines. Mother, however, never successfully passed a drug screen.

         [¶5] Following the paternity court's order, Mother initially participated in supervised parenting time several times per week at Father's home. In 2012, Father and Stepmother began dating, and in the summer of 2012, Stepmother and her daughter from a prior relationship moved in with Father and the Child. At that point, Mother ceased exercising parenting time, although Mother did visit the Child once in December of 2012. Since that time, however, Mother has not seen the Child. On January 2, 2013, Father and Stepmother were married. Thereafter, Stepmother assumed the maternal role in the Child's life and acted as a primary caretaker. From January of 2013 until December of 2013, Father was deployed to Afghanistan. During that time, the paternity court appointed Stepmother as the Child's temporary guardian, and Stepmother ensured that all of the Child's needs were met.

         [¶6] On August 14, 2014, Stepmother filed a petition to adopt the Child in the Johnson Superior Court under Cause Number 41D01-1408-AD-30 (adoption court). In her petition, Stepmother alleged that Mother's consent to the adoption was not required because Mother had not "for a period of at least one year, and without justifiable cause, communicated significantly with the [C]hild when able to do so" and because Mother had "abandoned or deserted the . . . [C]hild for at least six months immediately prior to the filing of [the adoption petition]." (Appellant's App. Vol. II, p. 2).[1] Stepmother subsequently filed an amended adoption petition (on June 9, 2015), to additionally argue that Mother's consent to the adoption was not required because, for a period of at least one year, Mother had failed to provide for the care and support of the Child in accordance with the paternity court's support order. Along with Stepmother's adoption petition, Father filed his consent to Stepmother's adoption of the Child. At the time, Father and Stepmother were unaware of Mother's whereabouts and hired an investigator to track her down. It was not until three months after Stepmother filed her petition that Mother was served with notice of such.

         [¶7] From September of 2013 until June of 2014, Mother was incarcerated. After she was released, Mother filed a motion with the paternity court for a modification of her parenting time with the Child. On October 15, 2014-prior to Mother receiving notice of the adoption petition-the paternity court held a hearing on Mother's motion. On October 17, 2014, Mother filed a letter with the paternity court seeking joint custody of the Child. Six days later, she again filed correspondence with the paternity court, reiterating her request for assistance in being able to visit with the Child and requesting joint custody. On November 6, 2014, the paternity court issued an order, finding that it would be in the Child's best interest for Mother to resume exercising parenting time "with a twenty (20) week phase-in period." (Appellant's App. Vol. III, p. 89). Following the phase-in period, Mother was to have parenting time in accordance with the Indiana Parenting Time Guidelines.

         [¶8] In November of 2014, Mother was served with notice of Stepmother's adoption petition, and on November 24, 2014, she filed her objection to the Child's adoption by Stepmother. In response to Stepmother's contention that Mother's consent was not required for the adoption to proceed, Mother claimed that she had never abandoned the Child and further asserted that Father and Stepmother had denied her efforts to see or communicate with the Child. On December 23, 2014, Mother filed a motion to consolidate the pending case in the adoption court with the ongoing case in the paternity court. On January 21, 2015, the paternity court transferred its case to the adoption court.

         [¶9] On April 7, 2015, Stepmother filed a home study with the adoption court in accordance with Indiana Code section 31-19-8-5. The home study was completed by Terrence Lovejoy (Lovejoy), a social worker with the Children's Bureau, Inc., and included background checks into Stepmother's criminal history and any involvement with the Department of Child Services (DCS). The background checks revealed Stepmother's two prior convictions for driving while intoxicated, in 2009 and 2012, as well as arrests/citations in 2011 and 2012 for contempt and driving while suspended, respectively. Stepmother has had no prior involvement with DCS. Nevertheless, during the home visit, Lovejoy was reassured that alcohol was no longer a problem in Stepmother's life. Lovejoy reported that Stepmother has been

the primary and sole maternal figure currently involved in the life of [the] five-year-old [Child]. This includes being his sole caregiver for nearly a year when his [F]ather was deployed in the military. [The Child] refers to [Stepmother] ...

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