In the Matter of the Adoption of C.A.H., Minor Child, A.C.S., Appellant-Respondent,
R.S.E. and R.K.E., Appellees-Petitioners.
from the Morgan Superior Court The Honorable Peter R. Foley,
Judge Trial Court Cause No. 55D01-1705-AD-85
ATTORNEY FOR APPELLANT Tonisha Jarrett Foley, Peden &
Wisco, P.A. Martinsville, Indiana
ATTORNEY FOR APPELLEES Glen E. Koch II Boren, Oliver &
Coffey, LLP Martinsville, Indiana
A.C.S. ("Father") appeals the trial court's
decree of adoption, which granted the petition to adopt minor
child, C.A.H. ("the Child"), that was filed by
R.S.E. and R.K.E. (together, "Grandparents").
Father raises the following restated issue for our review:
whether the trial court erred in finding that Father's
consent to the adoption was irrevocably implied pursuant to
Indiana Code section 31-19-10-1.2(g) because Father failed to
appear for the final hearing.
and Procedural History
Child was born in July 2015 to M.H. ("Mother") and
Father. Grandparents are
Child's maternal grandparents and have cared for Child
since March 2016. Grandparents were appointed guardians of
Child in June 2016 under cause number 55D01-1603-GU-28.
In April 2017, the State filed a paternity action against
Father under cause number 55D01-1704-JP-173. On May 25, 2017,
Grandparents filed a petition to adopt Child. Mother
initially consented to the adoption of Child. Grandparents
claimed that Father's consent to the adoption was not
necessary pursuant to Indiana Code section 31-19-9-8 because
he (1) abandoned and deserted Child for at least six months
immediately preceding the date the adoption petition was
filed; (2) failed without justifiable cause to communicate
significantly with Child when able to do so for at least one
year; and (3) knowingly failed to provide for the care and
support of Child when able to do so as required by law for at
least one year. Appellant's App. Vol. II at 14.
In June 2017, Father filed a motion contesting the adoption
of Child and requesting counsel. The trial court held a
hearing on Father's request for counsel on July 24, 2017.
Father, who appeared late to the hearing, was appointed
pauper counsel. Id. at 4. On August 9, 2017, a
pretrial hearing was held, and Father appeared with counsel.
He told the trial court that he still wished to contest the
adoption, and the trial court set a hearing for November 2017
on the issue of whether Father's consent was necessary.
Tr. at 10. At the hearing, the trial court informed
Father that it was Father's obligation to stay in contact
with his counsel and provide her with any necessary
information. Id. at 14.
In the meantime, Father failed to appear for his deposition
on September 25. Accordingly, on October 11, 2017,
Grandparents filed a motion to dismiss Father's motion to
contest the adoption for failure to prosecute.
Appellant's App. Vol. II at 33-34. Father filed
a response alleging that he did not appear for the deposition
because he was incarcerated in the Hamilton County Jail.
Id. at 36. On October 31, 2017, Grandparents
withdrew their motion to dismiss, and the adoption
proceedings were stayed "pending resolution of the issue
of paternity." Id. at 38. In April 2018, a
hearing was held in the paternity case, after which the trial
court entered an order establishing paternity in Father.
Id. at 93. Grandparents then requested a final
hearing in the adoption case, and the trial court set the
hearing for June 2018. Id. at 42. The final hearing
was continued to July because Father was again incarcerated
and unable to attend the June hearing. Id. at 43.
Father appeared with counsel at the final hearing set for
July. Mother, who had initially consented to the adoption of
Child, told the trial court that she wanted to withdraw her
consent. Tr. at 18. Accordingly, the court appointed
Mother counsel and continued the final hearing to October.
Id. at 22, 25. The final hearing was continued again
because Grandparents obtained new counsel and needed more
time to prepare. Appellant's App. Vol. II at 56.
The final hearing was scheduled for "all day" on
Friday, January 4, 2019, starting at 9 a.m. Id. at
58. Mother appeared with counsel and consented to the
adoption of Child. Tr. at 33, 35. Father's
counsel appeared, but Father did not. The trial court asked
Father's counsel if she had spoken to Father, and she
responded that, although she had not talked to him that day,
she had had "multiple" phone calls with him the day
before and that he indicated he would be in the courtroom
between 8:30 a.m. and 8:45 a.m. on the date of the hearing.
Id. at 33. Father's counsel requested a
continuance because Father had "appeared to every other
hearing" and had "answered every phone call as of
yesterday." Id. Grandparents' attorney, who
noted that the time was 10:17 a.m., objected to a continuance
because the adoption case had been pending since May 2017 and
because Father "appeared at other proceedings" and
had been informed of the date of the final hearing.
Id. at 34. Accordingly, Grandparents' attorney
asked the trial court to "proceed in default"
pursuant to Indiana Code section 31-19-10-1.2(g).
Id. Section 31-19-10-1.2(g) provides: "If a
court finds that the person who filed the motion to contest
the adoption is failing to prosecute the motion without undue
delay, the court shall dismiss the motion to contest with
prejudice, and the person's consent to the adoption shall
be irrevocably implied."
The trial court denied Father's request for a