In the Matter of the Adoption of C.A.H., A.C.S. (Father), Appellant-Respondent,
R.S.E. and R.K.E. (Grandparents), Appellees-Petitioners.
from the Morgan Superior Court, No. 55D01-1705-AD-85 The
Honorable Peter R. Foley, Judge.
Petition to Transfer from the Indiana Court of Appeals, No.
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.
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 §
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.
and Procedural History
("Child") was born in 2015 to M.H.
("Mother") 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,
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.
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.
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.
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.
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 ...