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In re Adoption of C.A.H.

Supreme Court of Indiana

January 10, 2020

In the Matter of the Adoption of C.A.H., A.C.S. (Father), Appellant-Respondent,
v.
R.S.E. and R.K.E. (Grandparents), Appellees-Petitioners.

          Appeal from the Morgan Superior Court, No. 55D01-1705-AD-85 The Honorable Peter R. Foley, Judge.

          On Petition to Transfer from the Indiana Court of Appeals, No. 19A-AD-240.

          ATTORNEY FOR APPELLANT, FATHER Alexander W. Robbins The Law Office of Alex Robbins Bedford, Indiana.

          ATTORNEY FOR APPELLEES, GRANDPARENTS Glen E. Koch, II Boren, Oliver & Coffey, LLP Martinsville, Indiana.

          OPINION

          PER CURIAM.

         Indiana law allows trial courts to find that a natural parent's consent to the adoption of a child is irrevocably implied if the parent fails to prosecute a motion to contest the adoption "without undue delay." Ind. Code § 31-19-10-1.2(g).

         However, a parent's implied consent to the adoption of a child may not be based solely on the parent's failure to appear at a single hearing, absent further findings to support a failure to prosecute. Accordingly, we reverse the trial court's finding that Father's consent was irrevocably implied in this matter and remand for further proceedings.

         Facts and Procedural History

         C.A.H. ("Child") was born in 2015 to M.H. ("Mother")[1] and A.C.S. ("Father"). R.S.E. and R.K.E. ("Grandparents"), Child's maternal grandparents, have cared for Child since March 2016. In June 2016, Grandparents were appointed Child's guardians, and in May 2017, Grandparents filed a verified petition to adopt Child. This petition claimed that Father's consent to the adoption was unnecessary under Indiana Code sections 31-19-9-8(a)(1)-(2), 31-19-9-8(a)(11), and 31-19-9-8(b). Specifically, Grandparents claimed that for a period of at least six months preceding the filing of the petition, Father had "abandoned and deserted" Child, and that for a period of at least one year preceding the filing of the petition, Father had failed to communicate with or provide financial support for Child. bAppellant's App. Vol. II, p. 14.

         Father filed a motion contesting the adoption and was appointed counsel. Father appeared, with his attorney, at an August 2017 pretrial hearing, and the trial court set a hearing for November on the issue of whether Father's consent to the adoption was necessary. But when Father failed to appear for a deposition in September 2017, Grandparents filed a motion to dismiss Father's motion to contest the adoption for failure to prosecute. Father responded, indicating that he failed to appear because he was incarcerated in the Hamilton County Jail, and Grandparents voluntarily withdrew their motion to dismiss. Shortly thereafter, the November 2017 hearing on whether Father's consent was necessary was vacated and the adoption proceedings were stayed "pending resolution of the issue of paternity." App. Vol. II, p. 38.

         In April 2018, the trial court issued orders establishing paternity in Father and setting the final hearing in the adoption case for June. On the morning of the final hearing, Father, by counsel, moved to continue, indicating that the previous day he was released from the Morgan County Jail "and picked up by Hamilton County" and was therefore unable to attend. Id. at 43. The trial court continued the hearing to July 18, 2018.

         Father appeared at the July 18 hearing, but when Mother withdrew her consent to the adoption, the trial court appointed Mother counsel and continued the final hearing to October 5. Id. at 46-47. On October 4, Grandparents, by counsel, requested a continuance of all pending matters to allow them time to obtain other legal counsel, and the hearing was reset to November 14, 2018. Id. at 53, 55. Before this hearing, Grandparents filed an unopposed motion to continue, and the final hearing again was reset to January 4, 2019. Id. at 56, 58.

         Father failed to appear the morning of the final hearing. Although Father's counsel informed the court that she had had "multiple" phone calls with Father the day before and he had indicated he would attend, the trial court denied her oral motion for a continuance. Tr. Vol. II at 33, 35. The trial court then entered a decree of adoption in which it found that "Natural father [ ] fails to appear. The Court finds [Father's] consent is not necessary. See Ind. Code Sec. 31-19-10-1.2. The rights of the natural father [ ] are hereby terminated." App. Vol. II, p. 93. Father filed a Trial Rule 60(B) motion for relief from judgment, indicating that he overslept on January 4 but "still appeared at the courthouse during the scheduled hearing time." The trial court denied this motion. Id. at 99.

         In a divided opinion, the Court of Appeals affirmed. Matter of Adoption of C.A.H., 132 N.E.3d 403 (Ind.Ct.App. 2019). The majority found that this case was similar to K.S. v. D.S., 64 N.E.3d 1209 (Ind.Ct.App. 2016), trans. not sought, which affirmed the trial court's finding that the birth mother's consent to adoption was irrevocably implied due to her failure to appear at two hearings and her failure to maintain contact with her attorney. Judge Vaidik dissented, contending that the majority opinion sets the bar for finding implied consent in adoption cases "too low," and ...


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