B.B. v. B.C. (In re Adoption of I.B.)

• Decision Date: 11 June 2015
• Docket Number: No. 82S05–1502–AD–63.,82S05–1502–AD–63.
• Citation: 32 N.E.3d 1164
• Parties: In the Matter of the ADOPTION OF Minor Children: I.B. and W.B.: B.B., Appellant (Cross–Petitioner/Intervenor), v. B.C. and J.L., Appellees (Adoptive Parents/Petitioners), and Indiana Department of Child Services, Co–Appellee (Wardship of I.B. and W.B.).
• Court: Indiana Supreme Court

32 N.E.3d 1164

In the Matter of the ADOPTION OF Minor Children: I.B. and W.B.: B.B., Appellant (Cross–Petitioner/Intervenor)

v. B.C. and J.L., Appellees (Adoptive Parents/Petitioners)andIndiana Department of Child Services, Co–Appellee (Wardship of I.B. and W.B.).

No. 82S05–1502–AD–63.

Supreme Court of Indiana.

June 11, 2015.

Steven E. Ripstra, Melissa Jo Haley, Ripstra Law Office, Jasper, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Robert J. Henke, Christina D. Pace, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee Indiana Department of Child Services.

Julie Fox, Matthew W. Lutz, Fox & Lutz, LLC, Evansville, IN, Attorneys for Appellees B.C. and J.L.

On Petition to Transfer from the Indiana Court of Appeals, No. 82A05–1402–AD–65

RUSH, Chief Justice.

After I.B. and W.B. were removed from their parents, both grandmothers petitioned to adopt them. The trial court permitted the maternal grandmother and her fiancé to adopt the children—even though the maternal grandmother has a prior felony conviction that statutorily disqualifies her from adopting—and the paternal grandmother appealed. The Court of Appeals affirmed, holding the statutory disqualification unconstitutional as applied because it created an “irrebuttable presumption” that blocked consideration of the children's best interests.

We disagree with that analysis. The United States Supreme Court has left its “irrebuttable presumption” cases lying dormant for several decades. And under its more recent “classification” analysis, the statute's regrettable consequences under the facts of this case establish no as-applied constitutional violation. We therefore reverse the trial court and remand to reconsider both adoption petitions to the extent they are statutorily permissible, receiving supplemental evidence if it chooses.

Facts and Procedural History

In May of 2011, toddler W.B. and newborn I.B.—and also their early adolescent half-brothers J.C. and G.C.—were removed from their home because I.B. tested positive at birth for marijuana and the mother tested positive for methamphetamine. I.B. also has extensive special medical needs, including cerebral palsy and a gastrostomy tube (“G-tube ”), and was hospitalized for the first six months of his life. All four were eventually adjudicated to be children in need of services (CHINS).

From May until October of 2011, the three oldest children were placed in the home of their maternal grandmother, B.C. (“Maternal Grandmother”), and her fiancé, J.L. (“Fiancé”), while I.B. stayed in the hospital. But then Maternal Grandmother and Fiancé tested positive for marijuana and were initially uncooperative with services, so W.B. was briefly placed with his paternal grandmother, Appellant B.B. (“Paternal Grandmother”). Around Thanksgiving 2011, I.B. was released from the hospital, and all four children were returned to their mother and W.T.B. (W.B. and I.B.'s father) for a trial home visit. But the trial home visit failed, and the children went to two different foster homes—the older children in one, and W.B. and I.B. in another.

Then in mid–2012, the children—first the older two, then W.B., and finally I.B.—transitioned back to Maternal Grandmother and Fiancé, who petitioned to adopt all four of them with the mother's consent.¹ The older boys' adoption was uncontested and was granted in early October 2013. But Paternal Grandmother cross-petitioned to adopt W.B. and I.B., and the court heard testimony in a two-day-long contested hearing. We summarize that evidence in the light most favorable to the trial court's findings and judgment.

Maternal Grandmother's and Fiancé's Home and Relationship with the Children

The Department of Child Services (DCS) and Court Appointed Special Advocate (CASA) recommended adoption by Maternal Grandmother and Fiancé instead of Paternal Grandmother. Maternal Grandmother and Fiancé had proactively sought out G-tube training early in the case. And they also (along with the older siblings) use playtime to reinforce aspects of I.B.'s physical therapy, so that I.B.'s mobility and speech have far exceeded providers' expectations. The success Maternal Grandmother and Fiancé had in handling I.B.'s special needs echoes their similar success in helping his half-brother J.C. manage his special emotional needs through anger-management strategies and seeking out appropriate inpatient treatment when it was warranted.

Furthermore, all four siblings are closely bonded with each other—especially I.B. with G.C., and W.B. with J.C. Likewise, W.B. and I.B. (like the older two) are strongly bonded with Maternal Grandmother and Fiancé. For example, even with I.B.'s limited speech, he enthusiastically greets Fiancé as “Buddy.” Their home has three bedrooms. And because Maternal Grandmother and Fiancé work different schedules, they need third-party childcare only three half-days per week, and both their employers offer significant flexibility for accommodating I.B.'s frequent doctor appointments. Finally, DCS and CASA in their recommendations emphasized the importance of preserving the sibling relationship between the four children, believing it would be detrimental to all four children if I.B. and W.B. were separated from the older boys.

Maternal Grandmother and Fiancé both testified candidly about their prior marijuana use and initial hostility to cooperating with DCS after the children's removal—as well as their change of heart and renewed focus on providing what the children needed. At first, when Maternal Grandmother tested positive for marijuana, Fiancé refused to consent to testing until several weeks later, and both were initially uncooperative with services offered by DCS. But they relented, and each began substance-abuse counseling as referred by DCS. After counseling identified no dependency on illegal substances, however, they both declined further services because the sessions were expensive. At the hearing, both Maternal Grandmother and Fiancé admitted they had occasionally used marijuana (Fiancé more frequently), but had stopped using and had been drug-free for nearly two years, confirmed by random testing. Their conduct had persuaded the family case manager that “they turned their mindsets around ... that they needed to be in this for the children.”

Paternal Grandmother's Home and Relationship with the Children

By contrast, even though Paternal Grandmother undisputedly had a good relationship with I.B. and W.B., DCS and CASA had reservations about her as an adoptive parent. The trial court's findings reflect that she had been passive and disengaged during the CHINS case, never obtaining G-tube training, nor attempting to do so until it became an issue in the case. As a working single parent, she would need to rely heavily on third-party childcare, but had not adequately investigated her options—even though childcare would be particularly challenging because any provider would also need G-tube training. She had struggled to meet J.C.'s special needs during the brief time the children were in her home, and at least once had lacked adequate food. And her home and her work schedule are generally less-suited to raising children—her home has only two bedrooms, her ability to take even important phone calls at work is restricted, and her schedule is rigid (with only five days' paid leave per year) so that accommodating I.B.'s frequent medical appointments would be difficult.

But the trial court's greatest concern, reflected three times in its findings, was with Paternal Grandmother's poor judgment about her son W.T.B.—I.B. and W.B.'s father and the other children's stepfather. The record amply supports the court's concern: J.C.'s special emotional needs stem from witnessing W.T.B.'s domestic violence against the children's mother. In particular, in the fall of 2012, W.T.B. had beaten her so severely she could barely breathe and needed emergency medical care. Afterward, Paternal Grandmother arrived at the scene of the beating (a motel where the parents were living together despite a no-contact order), but did not call the police. As she testified, “It never crossed my mind. Didn't think about it. They both had been drinking and I just wanted the situation to become peaceful.” Rather, Maternal Grandmother and Fiancé reported the beating to authorities, after the mother showed up severely injured at their home and they took her to the hospital. Once before that, as well, Paternal Grandmother had briefly allowed the parents to live together with her despite her knowledge of the protective order. The court's findings reflect concern that she would permit the children to have detrimental contact with the father, while failing to preserve their relationship with Maternal Grandmother and Fiancé.

Maternal Grandmother's and Fiancé's Criminal History

Complicating the trial court's best-interests analysis, both Maternal Grandmother and Fiancé had felony convictions from fifteen or more years prior. In 1989, Fiancé was convicted of armed robbery in Iowa, and had also been convicted of burglary twice in Illinois, serving prison time in both states. And in 1997, Maternal Grandmother had pleaded guilty to Class D felony neglect of a dependent, resulting in a two-year suspended sentence, for failing to report her ex-husband's molestation of her daughter (the children's mother). DCS and CASA were aware of those convictions but had no concerns about how well either of them could raise the children—and indeed, DCS had formally waived any disqualifying effect of Fiancé's convictions. But as DCS's written report acknowledged, Maternal Grandmother's neglect conviction was disqualifying by statute and could not be waived. See Ind.Code § 31–19–11–1(c)(15) (2008). Both Maternal Grandmother and Fiancé testified on direct and cross-examination about their criminal histories, but none of the parties specifically argued (nor included in their proposed orders) that Maternal Grandmother's conviction was an...