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In re Adoption of C.A.H.

Court of Appeals of Indiana

August 5, 2019

In the Matter of the Adoption of C.A.H., Minor Child, A.C.S., Appellant-Respondent,
v.
R.S.E. and R.K.E., Appellees-Petitioners.

          Appeal 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

          KIRSCH, JUDGE.

         [¶1] 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.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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."

         [¶9] The trial court denied Father's request for a ...


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