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In re Adoption of J.R.O.

Court of Appeals of Indiana

November 16, 2017

In the Matter of the Adoption of J.R.O. (Minor Child)
v.
A.T. and M.H., Appellees-Petitioners J.O. (Father), Appellant-Respondent, In the Matter of the Involuntary Termination of the Parent-Child Relationship of J.R.O. (Minor Child) and J.O. (Father), Appellant-Respondent,
v.
Indiana Department of Child Services, Appellee-Petitioner

         Appeal from the Vanderburgh Superior Court The Honorable Brett J. Niemeier, Judge The Honorable Renée Allen Ferguson, Magistrate Judge Trial Court Cause Nos. 82D04-1504-AD-36 and 82D04-1606-JT-1016.

          Attorney for Appellant Yvette M. LaPlante Keating & LaPlante, LLP Evansville, Indiana.

          Attorneys for Appellees A.T. and M.H. Allyson R. Breeden Molly E. Briles Ziemer, Stayman, Weitzel & Shoulders, LLP Evansville, Indiana.

          CRONE, JUDGE.

         Case Summary

         [¶1] J.R.O. was the subject of a child in need of services ("CHINS") proceeding and a guardianship proceeding. His maternal great-aunt, A.T., and her wife, M.H. (collectively "Appellees"), petitioned to adopt him. J.R.O.'s father, J.O. ("Father"), was incarcerated and unrepresented by counsel in the adoption proceeding when the trial court held a hearing on the adoption petition. During that hearing, the court consolidated the CHINS, guardianship, and adoption proceedings. An attorney who represented Father in the CHINS proceeding and represented Father's mother and stepfather in the guardianship proceeding - and later represented Father in the adoption proceeding - orally objected to the filing of the adoption petition because adoption would terminate Father's parental rights. The Indiana Department of Child Services ("DCS") later petitioned for the involuntary termination of Father's parental rights. Pursuant to Indiana Code Section 31-19-9-18, the trial court ultimately determined that Father's consent to the adoption was irrevocably implied because he did not file a written motion to contest the adoption. Consequently, the court granted Appellees' petition to adopt J.R.O.

         [¶2] Father now appeals, asserting that Indiana Code Section 31-19-9-18 does not require the filing of a written motion to contest an adoption and that counsel's oral objection was sufficient. We agree and therefore reverse and remand for further proceedings.

         Facts and Procedural History[1]

         [¶3] The essential facts are these. J.R.O. was born out of wedlock to A.W. ("Mother") and Father in December 2012. Mother and Father executed a paternity affidavit in January 2013. In November 2014, DCS removed J.R.O. from Mother and Father due to allegations of abuse and neglect and initiated a CHINS proceeding. During a hearing on November 18, at which Father did not appear, Mother admitted and the trial court declared that J.R.O. was a CHINS. On December 2, attorney Jacob Warrum entered an oral appearance for Father in the CHINS proceeding. The trial court subsequently entered a dispositional order making J.R.O. a ward of DCS.

         [¶4] In a separate proceeding, on April 6, 2015, Father's mother and stepfather ("Paternal Grandparents") petitioned to be J.R.O.'s guardians. Paternal Grandparents were represented by Warrum, who prepared waivers and consents to the guardianship that were signed by Mother and Father.

         [¶5] In yet another proceeding, on April 22, 2015, Appellees filed a petition to adopt J.R.O. Indiana Code Section 31-19-9-1 states that, except as otherwise provided in Chapter 31-19-9, a petition to adopt a child who is less than eighteen years old may be granted only if written consent to adoption has been executed by the mother of a child born out of wedlock and the father of a child whose paternity has been established by a paternity affidavit. Appellees' adoption petition alleged that Father's and Mother's consent to the adoption was not required for various reasons pursuant to Indiana Code Section 31-19-9-8. Appellees also filed a motion requesting that the guardianship and adoption proceedings be consolidated at a guardianship hearing set for April 23.

         [¶6] The following persons appeared at the April 23 hearing: Mother, Warrum, Paternal Grandparents, DCS's counsel and family case manager, and Appellees and their counsel. Father was incarcerated; he did not appear telephonically, and, according to the chronological case summary ("CCS"), no one had entered an appearance for him in the adoption proceeding. The trial court announced its intention to consolidate the CHINS, guardianship, and adoption proceedings. Warrum stated that he did not object to the consolidation but did object to the filing of the adoption petition because "that goes against the plan of permanency. An adoption would therefore terminate the parental rights. That is against all logic." Tr. at 6. The trial court consolidated the proceedings over Warrum's objection.[2] Appellees' counsel served Mother with notice of the adoption petition in open court and stated that she had provided "Warrum with [Father's], as well." Id. at 7.[3] Appellees' counsel also stated, "[W]e are alleging the consent [of Mother and Father] is not necessary, so we may need a consent hearing prior to the adoption hearing." Id. The parties agreed on June 16 for the consent hearing and July 14 and 15 for the adoption hearing.

         [¶7] The June 16 hearing was cancelled. On June 23, the adoption hearing was reset for July 30. On July 30, the trial court set a hearing in all three proceedings for August 25.[4] The CCS in the adoption proceeding and the CCS in the CHINS proceeding indicate that at the August 25 hearing, "Warrum's office appear[ed] by phone as counsel for [F]ather" and Mother signed a consent to the adoption. Appellant's App. Vol. 2 at 23; Appellees' App. Vol. 2 at 8.[5] A hearing was set for November 24, during which Warrum moved to withdraw as Father's counsel and attorney Thomas Krochta was appointed to replace him.[6] At a hearing on December 7, a trial was set for March 7, 2016. Additional continuances ensued.

         [¶8] Meanwhile, on June 13, 2016, DCS filed a petition for the involuntary termination of Mother's and Father's parental rights ("TPR"). At the initial hearing on July 26, the trial court appointed Krochta to represent Father, who was incarcerated and appeared telephonically. Krochta entered a denial on Father's behalf. On August 25, Father was released from incarceration and participated ...


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